Document text
PRELIMINARY MEMORANDUM CONCERNING REFERRAL OF OFFICE OF INDEPENDENT COUNSEL David E. Kendall Charles F.C. Ruff Nicole K. Seligman Cheryl Mills Emmet T. Flood Lanny A. Breuer Max Stier OFFICE OF THE WHITE Glen Donath HOUSE COUNSEL Alicia L. Marti The White House WILLIAMS & CONNOLLY Washington, DC 20005 725 12th Street, N.W. Washington, DC 20005 September 11, 1998 EXECUTIVE SUMMARY Summary of Key Points of the President's Case in Anticipation of the Starr Report The President has acknowledged a serious mistake - an inappropriate relationship with Monica Lewinsky. He has taken responsibility for his actions, and he has apologized to the country, to his friends, leaders of his party, the cabinet and most importantly, his family. 1. This private mistake does not amount to an impeachable action . A relationship outside one's marriage is wrong - and the President admits that. It is not a high crime or misdemeanor. The Constitution specifically states that Congress shall impeach only for "treason, bribery or other high crimes and misdemeanors." These words in the Constitution were chosen with great care, and after extensive deliberations. 2. "High crimes and misdemeanors" had a fixed meaning to the Framers of our Constitution - it meant wrongs committed against our system of government. The impeachment clause was designed to protect our country against a President who was using his official powers against the nation, against the American people, against our society. It was never designed to allow a political body to force a President from office for a very personal mistake. 3. Remember - this report is based entirely on allegations obtained by a grand jury - reams and reams of allegations and purported "evidence" that would never be admitted in court, that has never been seen by the President or his lawyers, and that was not subject to cross-examination or any other traditional safeguards to ensure its credibility. 4. Grand juries are not designed to search for truth . They do not and are not intended to ensure credibility, reliability, or simple fairness. They only exist to accuse. Yet this is the process that the Independent Counsel has chosen to provide the "evidence" to write his report. 5. The law defines perjury very clearly . Perjury requires proof that an individual knowingly made a false statement while under oath. Answers to questions that are literally true are not perjury. Even if an answer doesn't directly answer the question asked, it is not perjury if it is true - no accused has an obligation to help his accuser. Answers to fundamentally ambiguous questions also can never be perjury. And nobody can be convicted of perjury based on only one other person's testimony. 6. The President did not commit perjury . Most of the illegal leaks suggesting his testimony was perjurious falsely describe his testimony. First of all, the President never testified in the Jones deposition that he was not alone with Ms. Lewinsky. The President never testified that his relationship with Ms. Lewinsky was the same as with any other intern. To the contrary, he admitted exchanging gifts with her, knowing about her job search, receiving cards and notes from her, and knowing other details of her personal life that made it plain he had a special relationship with her. 7. The President has admitted he had an improper sexual relationship with Ms. Lewinsky . In a civil deposition, he gave narrow answers to ambiguous questions. As a matter of law, those answers could not give rise to a criminal charge of perjury. In the face of the President's admission of his relationship, the disclosure of lurid and salacious allegations can only be intended to humiliate the President and force him from office. 8. There was no obstruction of justice . We believe Betty Currie testified that Ms. Lewinsky asked her to hold the gifts and that the President never talked to her about the gifts. The President admitted giving and receiving gifts from Ms. Lewinsky when he was asked about it. The President never asked Ms. Lewinsky to get rid of the gifts and he never asked Ms. Currie to get them. We believe that Ms. Currie's testimony supports the President's. 9. The President never tried to get Ms. Lewinsky a job after she left the White House in order to influence her testimony in the Paula Jones case . The President knew Ms. Lewinsky was unhappy in her Pentagon job after she left the White House and did ask the White House personnel office to treat her fairly in her job search. He never instructed anyone to hire her, or even indicated that he very much wanted it to happen. Ms. Lewinsky was never offered a job at the White House after she left - and it's pretty apparent that if the President had ordered it, she would have been. 10. The President did not facilitate Ms. Lewinsky's interview with Bill Richardson, or her discussions with Vernon Jordan . Betty Currie asked John Podesta if he could help her with her New York job search which led to an interview with Bill Richardson, and Ms. Currie also put her in touch with her longtime friend, Mr. Jordan. Mr. Jordan has made it clear that this is the case, and, as a private individual, he is free to offer job advice wherever he sees fit. 11. There was no witness tampering. Betty Currie was not supposed to be a witness in the Paula Jones case . If she was not called or going to be called, it was impossible for any conversations the President had with her to be witness tampering. The President testified that he did not in any way attempt to influence her recollection. 12. There is no "talking points" smoking gun. Numerous illegal leaks painted the mysterious talking points as the proof that the President or his staff attempted to suborn the perjury of Monica Lewinsky or Linda Tripp. The OIC's spokesman said that the "talking points" were the "key" to Starr even being granted authority to investigate the President's private life. Yet in the end, Ms. Lewinsky has apparently admitted the talking points were written by her alone [or with Ms. Tripp's assistance], and the President was not asked one single question about them in his grand jury appearance. 13. Invocation of privileges was not an abuse of power . The President's lawful assertion of privileges in a court of law was only made on the advice of his Counsel, and was in significant measure validated by the courts. The legal claims were advanced sparingly and as a last resort after all attempts at compromise by the White House Counsel's office were rejected to protect the core constitutional and institutional interests of this and future presidencies. 14. Neither the President nor the White House played a role in the Secret Service's lawful efforts to prevent agents from testifying to preserve its protective function . The President never asked, directed or participated in any decision regarding the protective function privilege. Neither did any White House official. The Treasury and Justice Departments independently decided to respond to the historically unprecedented subpoenas of Secret Service personnel and to pursue the privilege to ensure the protection of this and future presidents. 15. The President did not abuse his power by permitting White House staff to comment on the investigation . The President has acknowledged misleading his family, staff and the country about the nature of his relationship with Ms. Lewinsky, and he has apologized and asked for forgiveness. However, this personal failing does not constitute a criminal abuse of power. If allowing aides to repeat misleading statements is a crime, then any number of public officials are guilty of misusing their office for as long as they fail to admit wrong doing in response to any allegation about their activities. 16. The actions of White House attorneys were completely lawful . The White House Counsel attorneys provided the President and White House officials with informed, candid advice on issues raised during this investigation that affected the President's official duties. This was especially necessary given the fact that impeachment proceedings against the President were a possible result of the OIC's investigation from Day One. In fact, throughout the investigation, the OIC relied on the White House Counsel's office for assistance in gathering information and arranging interviews and grand jury appearances. The Counsel's office's actions were well known to the OIC throughout the investigation and no objection was ever voiced. This means that the OIC report is left with nothing but the details of a private sexual relationship, told in graphic details with the intent to embarrass. Given the flimsy and unsubstantiated basis for the accusations, there is a complete lack of any credible evidence to initiate an impeachment inquiry concerning the President. And the principal purpose of this investigation, and the OIC's report, is to embarrass the President and titillate the public by producing a document that is little more than an unreliable, one-sided account of sexual behavior. Where's Whitewater? The OIC's allegations reportedly include no suggestion of wrongdoing by the President in any of the areas which Mr. Starr spend four years investigating: Whitewater, the FBI files and the White House travel office. What began as an inquiry into a 24 year old land deal in Arkansas has ended as an inquest into brief, improper personal encounters between the President and Monica Lewinsky. Despite the exhaustive nature of the OIC's investigation into the Whitewater, FBI files and travel office matters, and a constant stream of suggestions of misconduct in the media over a period of years, to this day the OIC has never exonerated the President or the First Lady of wrongdoing. PRELIMINARY MEMORANDUM CONCERNING REFERRAL OF OFFICE OF INDEPENDENT COUNSEL This document is intended to be a preliminary response to the Referral submitted by the Office of Independent Counsel to The Congress. Because we were denied the opportunity to review the content, nature or specifics of the allegations made against the President by the Office of Independent Counsel (OIC), we do not pretend to offer a point-by-point refutation of those allegations, or a comprehensive defense of the President. We commend the House of Representatives for the extraordinary steps it has taken to safeguard the secrecy of the OIC's allegations. Unfortunately, its efforts were thwarted by unnamed sources familiar with the details of the OIC's allegations -- sources that could only come from the OIC itself -- who saw fit to leak elements of the allegations to the news media. Based on these illegal leaks, as well as our knowledge of the President's testimony, we offer this document as a summary outline of his side of the case. We will provide you with a specific rebuttal as soon as we have had a chance to review the materials that the OIC has already transmitted to you. The simple reality of this situation is that the House is being confronted with evidence of a man's efforts to keep an inappropriate relationship private. A personal failure that the President has acknowledged was wrong, for which he apologized, and for which he accepts complete responsibility. A personal failure for which the President has sought forgiveness from members of his family, members of the Cabinet, Members of Congress, and the American people. Such a personal failing does not, however, constitute "treason, bribery and high crimes and misdemeanors" that would justify the impeachment of the President of the United States. The President himself has described his conduct as wrong. But no amount of gratuitous details about the President's relationship with Ms. Lewinsky, no matter how salacious, can alter the fact that: 1) The President did not commit perjury: 2) The President did not obstruct justice; 3) The President did not tamper with witnesses; and 4) The President did not abuse the power of his office. Impeachment is a matter of incomparable gravity. Even to discuss it is to discuss overturning the electoral will of the people. For this reason, the Framers made clear, and scholars have long agreed, that the power should be exercised only in the event of such grave harms to the state as "serious assaults on the integrity of the processes of government," or "such crimes as would so stain a president as to make his continuance in office dangerous to public order." Charles L. Black, Impeachment: A Handbook 38-39 (1974). We do not believe the OIC can identify any conduct remotely approaching this standard. Instead, from press reports, if true, it appears that the OIC has dangerously overreached to describe in the most dramatic of terms conduct that not only is not criminal but is actually proper and lawful. The President has confessed to indiscretions with Ms. Lewinsky and accepted responsibility and blame. The allegations concerning obstruction, intimidation, perjury and subornation of perjury that we anticipate from the OIC are extravagant attempts to transform a case involving inappropriate personal behavior into one of public misconduct justifying reversal of the judgment of the electorate of this country. I. STANDARDS FOR IMPEACHMENT The Constitution provides that the President shall be removed from office only upon "Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." U.S. Const. Art. II, � 4. Of course, there is no suggestion of treason or bribery present here. Therefore, the question confronting the House of Representatives is whether the President has committed a "high Crime[] or Misdemeanor." The House has an obligation to consider the evidence in view of that very high Constitutional threshold. It should pursue the impeachment process only if there is evidence implicating that high standard. The House must approach the question with solemnity and with care, for history teaches that an "impeachable offense" is no ordinary kind of wrongdoing. The Framers included specific provisions for impeachment in the Constitution itself because they understood that the most severe political remedy was necessary to remedy the most serious forms of public wrongdoing. Impeachment is a basic constitutional safeguard, designed both to correct harms to the system of government itself and to protect the people from ongoing malfeasance. Nothing less than the gravest executive wrongdoing can justify impeachment. The Constitution leaves lesser wrongs to the political process and to public opinion. Presidential impeachment is thus a matter of incomparable gravity. As Professor Charles Black stated, [t]he presidency is a prime symbol of our national unity. The election of the president (with his alternate, the vice-president) is the only political act that we perform together as a nation; voting in the presidential election is certainly the political choice most significant to the American people, and the most closely attended to by them. No matter, then, can be of higher political importance than our considering whether, in any given instance, this act of choice is to be undone, and the chosen president dismissed from office in disgrace. Everyone must shrink from this most drastic of measures. Impeachment: A Handbook 1 (1974). Presidential impeachment is thus an "awful step." Ibid. The Framers knew this. For that reason they framed the constitutional procedure with precision and specified grounds for impeachment with great care. The Framers deliberately chose to make "high Crimes and Misdemeanors" the standard of an impeachable offense. They were familiar with English common law and parliamentary history and they borrowed the expression directly from the English law of impeachment. They did so knowing that the expression was a term of art and they made the choice after deliberate rejection of alternative formulations of the impeachment standard. The Framers intended the standard to be a high one. They rejected a proposal that the President be impeachable for "maladministration," for, as James Madison pointed out, such a standard would "be equivalent to a tenure during the pleasure of the Senate." The Framers plainly did not intend to permit Congress to debilitate the executive by authorizing impeachment for something short of the most serious harm to the state. In George Mason's apt phrase, impeachment was thought necessary to remedy "[a]ttempts to subvert the Constitution." In English practice, the term "high crimes and misdemeanors" had been applied to various offenses, the common elements of which were their severity and the fact that the wrongdoing was directed against the state. The English cases included misappropriation of public funds, interfering in elections, accepting bribes, neglect of duty, and various forms of corruption. Ibid. These offenses all affected the discharge of public duties by public officials. In short, under the English practice, "the critical element of injury in an impeachable offense was injury to the state." That is why, at the time of the ratification debates, Alexander Hamilton described impeachment as a "method of NATIONAL INQUEST into the conduct of public men." The Federalist No. 65 at 331 (Gary Wills ed. 1982). This "inquest" is perhaps the gravest process known to our Constitution. No act touches more fundamental questions of constitutional government than does the process of Presidential impeachment. No act more directly affects the public interest. No act presents the potential for greater injustice -- injustice both to the Chief Executive and to the people who elected him. For these reasons, the impeachment process must be painstaking and deliberate. It must focus only on such harms as the Framers intended to be redressed by the incomparably severe act of impeachment. And most importantly, it must be understood for what it is -- a process of inquiry. That process is itself the exercise of a public trust "of delicacy and magnitude." Accordingly, if the process is begun it is only just that the members engaged in this solemn task withhold judgment until the process is complete and all the facts are known. Our Constitution's most basic values and the requirements of simple justice together demand no less. The President is sole head of one branch of our government -- indeed, in a certain sense the President is the Executive Branch. The Constitution provides that "[t]he executive Power shall be vested in a President of the United States of America." U.S. Const. art. II, � 1. The President is the only government official to have been popularly elected by all the American people. When the people elect a President, the popular will is expressed in its most important, most visible and most unmistakable form. The impeachment process, by definition, threatens to undo the popular will. Impeachment presents the prospect of reversing the electoral mandate that brought the executive to office. Conviction upon articles of impeachment actually does so. For these reasons, impeachment is limited to only certain forms of potential wrongdoing and it is intended to redress only certain kinds of harms. Again, in Hamilton's words: the subjects of [the Senate's impeachment] jurisdiction are those offenses which proceed from the misconduct of public men, or in other words from the abuse of violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done to the society itself. Federalist 65 at 330-31. The Framers and early commentators on the Constitution are in accord on the question of impeachment's intended consequence. In Justice James Wilson's words, impeachments are "proceedings of a political nature . . . confined to political characters" charging only "political crimes and misdemeanors" and culminating only in "political punishments." J. Wilson, Works 426 (R. McCloskey, ed. 1967) And as Justice Story put the matter, "the [impeachment] power partakes of a political character, as it respects injuries to the society in its political character." Joseph Story, Commentaries on the Constitution � 744 (1st Ed. 1833). That understanding of the Framers and early commentators reflected the historical understanding of impeachable offenses in England. "'High crimes and misdemeanors' were a category of political crimes against the state." Berger, Impeachment, at 61 (emphasis in original). Therefore, the Framers "intended that a president be removable from office for the commission of great offenses against the Constitution." Impeachment therefore addresses public wrongdoing, whether denominated a "political crime[] against the state," or "an act of malfeasance or abuse of office," or a "great offense[s] against the federal government." In short, impeachment is a necessary Constitutional check by a coordinate branch of government upon serious and aggravated abuses of executive power that, given the President's four-year term, might otherwise go unchecked. Holders of public office are therefore not to be impeached for private conduct, however wrongful. To the contrary, only "serious assaults on the integrity of the processes of government," and "such crimes as would so stain a president as to make his continuance in office dangerous to public order" should constitute impeachable offenses. Conduct which is not an "offense[] against the government," or "malfeasance or abuse of office," and which bears no "functional relationship" to public office, does not constitute grounds for impeachment. Allegations concerning private conduct--private sexual conduct in particular--simply do not implicate high crimes or misdemeanors. Private misconduct, or even public misconduct short of an offense against the state, is not redressable by impeachment because that solemn process, in Justice Story's words, addresses "offences[] which are committed by public men in violation of their public trust and duties." Story, Commentaries � 744 (emphasis added). Impeachment is a political act in the sense that its aims are public; it attempts to rein in abuses of the public trust committed by public officeholders in connection with conduct in public office. As one scholar has put it, "[t]he nature of [impeachment] proceedings is dictated by the harms sought to be redressed - "the misconduct of public men" relating to the conduct of their public office - and the ultimate issue to be resolved - whether they have forfeited through that conduct their right to continued public trust." Impeachment's public character is further evidenced by the fact that, as Justice Story expressed it, the process is conducted "by the representatives of the nation, in their public capacity," and "in the face of the nation." Story, Commentaries � 686. Constitutionally, impeachment's public function demands public accountability. Elected officials are no more qualified than ordinary voters to assess the private wrongs of public officeholders. The Constitution's impeachment mechanism does not exist to punish such wrongs. The public character of impeachable wrongs is also reflected in the fact that the remedy imposed for commission of impeachable acts is a wholly public one. Impeachment results in removal from office and possible disqualification from further office. U.S. Const. art.I, � 3, cl. 7. To say that impeachment is fundamentally a "political" process, however, is not to say that it is "partisan" in nature. Indeed, the Framers warned against the spirit of partisanship in impeachment proceedings. In Federalist 65, Hamilton wrote that the impeachment process threatened to "agitate the passions of the whole community . . .to divide it into parties . . . [to] connect itself with pre-existing factions [and] to enlist their animosities, partialities, influence and interest." Id. at 331. Justice Story warned of the danger that "the decision [to impeach] will be regulated more by the comparative strength of the parties, than by the strength of the proofs." Commentaries � 744. Only substantial evidence of presidential wrongdoing that threatened the processes of government or the public order can justify this grave and ideally bipartisan process. What is ultimately intended by impeachment's truly "political" nature is the manner of limitation the Constitution allows one elected (political) branch to place on the other elected (political) branch, the Presidency. Impeachment is necessarily a public act conducted by public bodies (the Houses of Congress exercising their constitutionally allotted portion of impeachment power) against a public officeholder (here, the President). Exercise of that limiting function is justified only when the people's representatives conclude that the people themselves must be protected from their own elected executive. Impeachment must therefore be approached with the utmost solemnity. The process must focus on public acts, performed in the President's public capacity, and affecting the public interest. Cognizant of the enormous harm that must follow the bare suggestion of formal impeachment processes, the House should pursue an impeachment inquiry if and only if there is credible evidence of actions constituting fundamental injuries to the governmental process. Indeed, the Committee should consider and approve articles of impeachment only for such acts as have, in its judgment, so seriously threatened the integrity of governmental processes as to have made the President's continuation in office a threat to the public order. Impropriety falling short of that high standard does not meet the constitutional measure. It must be left to the court of public opinion and the judgment of history. II. THE RELEVANT FACTUAL BACKGROUND The Monica Lewinsky investigation is the most recent phase of an amorphous, languorous, expensive, and seemingly interminable investigation into the affairs of a small Arkansas real estate firm, Whitewater Development Company, Inc. In January, 1994, Attorney General Reno made an administrative appointment (the Ethics in Government Act of 1978 having expired) of Robert B. Fiske, Jr., to investigate the relationship of the President and Mrs. Clinton to Whitewater, Madison Guaranty Savings & Loan Association, and Capital Management Services. After the reenactment of the Ethics in Government Act, the Special Division for the Purpose of Appointing Independent Counsels of the Court of Appeals appointed Kenneth W. Starr, a former high official in two Republican administrations, to replace Mr. Fiske on August 5, 1994, and gave him a generally similar grant of investigatory jurisdiction. During the past four and a half years, the President has cooperated extensively with this investigation. He has given testimony by deposition at the White House to the Independent Counsel on four separate occasions, and on two other occasions, he gave videotaped deposition testimony for Whitewater defendants and was cross-examined by the Independent Counsel. He has submitted written interrogatory answers, produced more than 90,000 pages of documents and other items, and provided information informally in a variety of ways. The OIC subpoenaed from the President, and reviewed, virtually every personal financial record and gubernatorial campaign finance record that exists for the period from the mid-1980s to the present, in its endless search to find something to use against the President. This comprehensive and thorough financial review yielded the OIC nothing. In May 1994, President Clinton was sued civilly by Ms. Paula Jones, who made various claims arising out of an encounter on May 8, 1991, when the President was Governor of Arkansas. Various constitutional questions were litigated, and it was not until the Supreme Court's decision on May 27, 1997 that the case proceeded to discovery. The Independent Counsel had no jurisdiction with respect to the Jones case, but there were occasional press reports that the OIC was in fact investigating the President's personal life. III. THE PRESIDENT'S TESTIMONY ABOUT MS. LEWINSKY In his grand jury testimony on August 17, 1998, the President acknowledged having had an improperly intimate relationship with Ms. Lewinsky. This is enormously difficult for any person to do even in private, much less in public. It is important to recognize that the improper relationship with Ms. Lewinsky ended in early 1997, at the President's behest. It therefore had been over for almost a year at the time of the President's deposition in the Jones case. From feelings both of friendship and responsibility, the President remained in touch with Ms. Lewinsky after the improper relationship ended and tried to help her: none of this help was improper or conditioned on her behaving (or testifying) in any particular way. It is not true that the President had an improper 18-month relationship with Ms. Lewinsky, as several media reports have alleged. In his grand jury deposition, he testified that on certain occasions in early 1996 and once in early 1997, he engaged in improper conduct with Ms. Lewinsky. These encounters did not consist of sexual intercourse, and they did not consist of "sexual relations" as he understood that term to be defined at his Jones deposition on January 17, 1998 (explained infra), but they did involve inappropriate intimate contact. These inappropriate encounters ended, at the President's insistence, in early 1997, not because of the imminence of discovery, not because of the Jones case (which the Supreme Court had not yet decided), but because he knew they were wrong. On August 17, 1998, the President expressed regret to the grand jury and, later, to the country, that what began as a friendship came to include this conduct, and he took full responsibility. He has frequently, to different audiences, made similar expressions of regret and apology. In this investigation, no stone has been left unturned--or (we believe) unthrown. In simple fairness, therefore, it is important to distinguish between what the President has acknowledged and what the OIC merely alleges (on the basis of evidence we have not yet seen). IV. THE NATURE OF THE OIC'S EVIDENCE Use of a federal grand jury to compile evidence for possible impeachment proceedings in Congress raises numerous troubling questions regarding the credibility of that evidence. Indeed, given the limited role of a grand jury in our system and the total absence of procedural protections in the process, the Independent Counsel's insistence that his investigation has been a search for "truth" is deeply misleading. In fact, it has been a one-sided effort to present the worst possible version of a limited set of facts. Section 595(c) requires the OIC to provide the House with "substantial and credible information . . . that may constitute grounds for impeachment." But a grand jury is a totally unsuitable vehicle for generating information that can, without more, be taken as credible beyond challenge. The grand jury's historic role is not to determine the truth but rather to act as an accusatory body. United States v. Williams, 504 U.S. 36, 51 (1992). The process excludes contrary views of the information gathered and fails to identify the kinds of exculpatory information that might have been elicited or presented had a targeted individual, and not just the OIC, had an opportunity to cross-examine and the ability to compel responses. Because it is inherently so one-sided and untested by cross-examination, it normally is not permissible to use grand jury testimony as a basis for anything other than permitting a grand jury to indict or decline to indict. It may constitute nothing more than hearsay, Costello v. United States, 350 U.S. 359, 364 (1956), or even multiple hearsay--evidence which would likely be excluded from a trial. Indeed, the information a grand jury gathers is not circumscribed by the Federal Rules of Evidence at all, see Fed. R. Evid. 1101(d)(2), nor delimited by the other safeguards of reliability which would be enforced at trial. The testimony a grand jury elicits is not subject to impeachment by interested parties, and such testimony may come from immunized witnesses, from witnesses who fear prosecution, from witnesses prepared by the prosecution, from witnesses with a history of untruthfulness--or from disinterested witnesses. On the record of the grand jury there need be no distinction among these sources, despite the fact that their reliability varies greatly. In its day-to-day operations, no judge presides over grand jury proceedings. United States v. Williams, 504 U.S. 36, 48 (1992). Grand jury witnesses do not have counsel present. Fed. R. Crim P. 6(d). The Double Jeopardy Clause does not prevent a grand jury from returning an indictment after a first grand jury has declined to do so. Ex Parte United States, 287 U.S. 241, 250-51 (1932). The exclusionary rule does not apply to grand jury proceedings. United States v. Calandra, 414 U.S. 338, 349 (1974). Grand jury witnesses have no right to respond with information, however related, if it is not called for by the prosecution, and targets and subjects of its inquiry have no compulsory process to gather and present their side of the matter. Nor does the target of a grand jury inquiry have any right to offset potentially incriminating information with exculpatory information in his possession. Williams, 504 U.S. at 55. In short, the most basic techniques our adversary system of justice employs for testing and assuring the reliability of evidence are completely missing in the grand jury context. As a consequence, "reliability" simply is not the touchstone of a grand-jury inquiry. The Supreme Court itself has said that "the mere fact that evidence is unreliable is not sufficient to require a dismissal of [an] indictment." Bank of Nova Scotia v. United States, 487 U.S. 250, 261 (1988). The same is true of "inadequate or incompetent" evidence. Its presence will not justify dismissal of an indictment. Calandra, 414 U.S. at 345; see also Holt v. United States, 218 U.S. 245 (1910) (same). It must therefore be recognized that it is not the grand jury's function to provide information about anything that can be taken as true on its face. Its function is not to get at the ultimate truth. The grand jury's inquisitorial powers serve but one end: to empower a body of citizens to make a threshold decision whether to initiate the search for truth that is the purpose of adversarial proceedings or to decline to indict and thereby forego that search altogether. Only after the grand jury renders that threshold decision does the search for truth really commence because only then are the adversary system's credibility-assessing mechanisms available. The grand jury secrecy rule, Rule 6(e), Fed. R. Crim. P., is justified--indeed, mandated--by this reality. Grand jury information is to be kept secret largely because it has been generated without the protections of the adversarial system. Unlike information presented in a trial setting, grand jury information presents an enormous risk that persons' reputations will be injured or destroyed on the basis of non-credible or insubstantial assertions. That harm may damage both witnesses and persons who are subjects of witness testimony. That is why, when a grand jury elects to indict, grand jury materials are sealed and withheld from the petit jury ultimately convened to find the truth and render a verdict. Accordingly a fair report from the OIC would, inter alia, provide all exculpatory evidence, assess the credibility of witnesses in terms of bias, reason to falsify, prior inconsistent statements, etc., and draw reasonable inferences. A fair report would identify shortcomings in the investigation itself, including any excesses, mistakes, errors in judgment, or impermissible tactics. A fair report would demonstrate that every possible effort had been made to identify all possibly exculpatory evidence, and that all such evidence had been given appropriate weight. And a fair report would address honestly and answer truthfully the following questions: 1) What were Linda Tripp's motives in seeking out the OIC in January, 1998? Did she articulate a fear of being prosecuted in Maryland under that State's anti-taping laws? Why did she request immunity from prosecution? Why was she given immunity? 2) What role did the OIC play in arranging for Ms. Tripp to meet with the Jones lawyers on Friday, January 16, 1998, the evening before the President's deposition? Did anyone from the OIC drive Ms. Tripp to this meeting? Did the OIC warn Ms. Tripp about the criminal law pertaining to sharing with third parties the fruits of illegal tapings or even communicating the fact that illegal tapes exist? Has anyone at the OIC made any assessment of what impact Ms. Tripp's conduct might have on any federal immunity deal Ms. Tripp might have obtained from the OIC? 3) What authority did the OIC have to wire Linda Tripp and attempt to develop evidence before obtaining permission to expand its jurisdiction from the Attorney General or the Special Division? What prevented the OIC from going directly to the Attorney General upon receiving the tapes from Ms. Tripp? If the primary basis for the expansion of the OIC's jurisdiction was evidence that was obtained in an ultra vires manner by the OIC, does that taint other information obtained by the OIC? 4) What assessment has the OIC made of Ms. Tripp's ideological motivations? Was the OIC aware she had submitted an anti-Clinton book proposal to avowed Clinton hater Lucianne Goldberg? Was the OIC aware of Goldberg's role in Ms. Tripp's taping and arrangement for Ms. Lewinsky's use of a messenger service? 5) How many statements on the Tripp-Lewinsky tapes are false or exaggerated? How many statements contradict assertions in the OIC's report? 6) When Ms. Tripp was asked to record Ms. Lewinsky surreptitiously, was this because the OIC was concerned about the legality of Ms. Tripp's previous telephone tapes of Ms. Lewinsky? 7) What was Ms. Tripp's motivation in initiating the surreptitious recording of her conversations with Ms. Lewinsky? Did Tripp steer the taped conversations with Ms. Lewinsky to obtain details about Ms. Lewinsky's sexual activities? Was the taping connected in any way to her relationship with Lucianne Goldberg? If Ms. Tripp began to tape Ms. Lewinsky with an unlawful purpose, did she commit a violation of the federal wiretapping statute (Title III)? If the tapes were obtained in violation of federal law, can the tapes or evidence derived from them be part of any official proceeding in Congress (see 18 U.S.C. � 2515)? 8) What, if anything, did the OIC offer the press to keep secret its investigation into Ms. Lewinsky? 9) Why was the OIC in such haste to petition the Attorney General for an expansion of jurisdiction? Precisely what was the Attorney General told about Ms. Tripp's telephone taping of Ms. Lewinsky? Did the "talking points" play any role in the application? What particular alleged crimes did the OIC seek authorization to investigate? 10) Ms. Lewinsky's lawyers, William Ginsburg and Nathaniel Speights, wrote in an essay in Time (Feb. 16, 1998) that the OIC informed them on Friday, January 16, 1998, "We've got a deal, and we want to wire her and record some phone calls;" these lawyers also wrote in that essay that "[The OIC] wanted her [Ms. Lewinsky] wired, and they wanted her to record telephone calls with the President of the U.S., Vernon Jordan and others--at their will." What persons did the OIC intend Ms. Lewinsky to record surreptitiously? 11) In a letter from the Independent Counsel to the President's personal counsel, dated February 6, 1998, the Independent Counsel wrote: "From the beginning, I have made the prohibition of leaks a principal priority of the Office. It is a firing offense, as well as one that leads to criminal prosecution." However, Chief Judge Johnson has entered a series of orders finding prima facie reason to believe that persons in the OIC violated Rule 6(e), Fed. R. Crim. P., by illegal leaking (for example, "[t]he Court finds that the serious and repetitive nature of disclosures to the media of Rule 6(e) material strongly militates in favor of conducting a show cause hearing" (June 19, 1998, Order, at 5)). Has anyone been fired or disciplined by the OIC for illegal leaking? What steps have been taken to investigate and discipline OIC personnel who have engaged in illegal leaking? V. LIKELY OIC ALLEGATIONS OF OBSTRUCTION OF JUSTICE, SUBORNATION OF PERJURY, AND INTIMIDATION OF WITNESSES The OIC obtained jurisdiction on January 16, 1998 to investigate possible obstruction of justice, subornation of perjury, and intimidation of witnesses in the Jones case. These crimes are quite specifically defined in the law, and the elements do not always have an obvious meaning. We consider first the definition and then the possible conduct to which these definitions might be applied. The term "obstruction of justice" usually refers to violations of 18 U.S.C. � 1503, the "Omnibus Obstruction Provision," which prohibits the intimidation and retaliation against grand and petit jurors and judicial officers and contains a catch-all clause making it unlawful to "influence, obstruct, or impede the due administration of justice." It may also refer to 18 U.S.C. � 1512, which proscribes intimidating, threatening, or corruptly persuading, through deceptive conduct, a person in connection with an official proceeding. For a conviction under � 1503, the government must prove that there was a pending judicial proceeding, that the defendant knew of the proceeding, and that the defendant acted "corruptly" with the specific intent to obstruct or interfere with the proceeding or due administration of justice. See, e.g., United States v. Bucey, 876 F.2d 1297, 1314 (7th Cir. 1989); United States v. Smith, 729 F. Supp. 1380, 1383-84 (D.D.C. 1990). Thus, if a defendant is unaware of a pending grand jury proceeding, he cannot be said to have obstructed it in violation of � 1503. See, e.g., United States v. Brown, 688 F.2d 1391, 1400 (9th Cir. 1992). Perhaps more significant is the "acting corruptly" element of the offense. Some courts have defined this term as acting with "evil and wicked purposes." See United States v. Banks, 942 F.2d 1576, 1578 (11th Cir. 1991). Four federal courts of appeals have held that to "act corruptly" under the statute, a defendant must have acted with the specific intent to obstruct justice. See United States v. Moon, 718 F.2d 1219, 1236 (2d Cir. 1983); United States v. Bashaw, 982 F.2d 168, 170 (6th Cir. 1992); United States v. Anderson, 798 F.2d 919, 928 (7th Cir, 1986); United States v. Rasheed, 663 F.2d 843, 847 (9th Cir. 1981). That is, it is not enough to prove that the defendant knew that a result of his actions might be to impede the administration of justice, if that was not his intent. It is critical to note which actions cannot fall under the ambit of � 1503. First, false statements or testimony alone cannot sustain a conviction under � 1503. See United States v. Thomas, 916, F.2d 647, 652 (11th Cir. 1990); United States v. Rankin, 870 F.2d 109, 111 (3d Cir. 1989). For instance, in United States v. Wood, 6 F.3d 692, 697 (10th Cir. 1993), the United States Court of Appeals for the Tenth Circuit found that a defendant's false statements to the Federal Bureau of Investigation during a grand jury investigation did not violate � 1503, because they did not have the natural and probable effect of impeding the due administration of justice. Moreover, � 1503 does not apply to a party's concealing or withholding discoverable documents in civil litigation. See, e.g., Richmark v. Timber Falling Consultants, 730 F. Supp. 1525, 1532 (D. Or. 1990) (because of the remedies afforded by the Federal Rules of Civil Procedure, � 1503 does not cover party discovery in civil cases, and "[t]he parties have not cited and the court has not found any case in which a person was charged with obstruction of justice for concealing or withholding discovery in a civil case"). Most cases that have found � 1503 applicable to civil cases do not involve the production or withholding of documents. See United States v. London, 714 F.2d 1558 (11th Cir. 1983) (attorney forged court order and attempted to enforce it), cited in Richmark, 730 F. Supp. at 1532; Sneed v. United States, 298 F. 911 (5th Cir. 1924) (influencing juror in civil case); cited in Richmark, 730 F. Supp at 1532. While � 1503 can apply to concealment of subpoenaed documents in a grand jury investigation, the defendant must have knowledge of the pending grand jury investigation, must know that the particular documents are covered by a subpoena, and must willfully conceal or endeavor to conceal them from the grand jury with the specific intent to interfere with its investigation. See United States v. McComb, 744 F.2d 555 (7th Cir. 1984). Section 1512 specifically applies to "witness tampering." However, by its terms, it does not purport to reach all forms of witness tampering, but only tampering by specified means. In order to obtain a conviction under � 1512, the government must prove that a defendant knowingly engaged in intimidation, physical force, threats, misleading conduct, or corrupt persuasion with intent to influence, delay, or prevent testimony or cause any person to withhold objects or documents from an official proceeding. While there is no "pending proceeding" requirement for convictions under � 1512, it is clear that a defendant must be aware of the possibility of a proceeding and his efforts must be aimed specifically at obstructing that proceeding, whether pending or not; � 1512 does not apply to defendants' innocent remarks or other acts unintended to affect a proceeding. See United States v. Wilson, 565 F. Supp. 1416, 1431 (S.D.N.Y. 1983). Moreover, it is important to define the terms "corruptly persuade" and "misleading conduct," as used in � 1512. The statute itself explains that "corruptly persuades" does not include "conduct which would be misleading conduct but for a lack of a state of mind." 18 U.S.C. � 1515(a)(6). It is also clear from the caselaw that "misleading conduct" does not cover scenarios where the defendant urged a witness to give false testimony without resorting to coercive or deceptive conduct. See, e.g., United States v. Kulczyk, 931 F.2d 542, 547 (9th Cir. 1991) (no attempt to mislead witnesses knew defendant was asking them to lie); United States v. King, 762 F.2d 232, 237 (2d Cir. 1985) (defendant who attempts to persuade witness to lie but not to mislead trier of fact does not violate � 1512). Subornation of perjury is addressed in 18 U.S.C. � 1622. The elements of subornation are that the defendant must have persuaded another to perjure himself, and the witness must have actually committed perjury. See, e.g. United States v. Hairston, 46 F.3d 361, 376 (4th Cir. 1959), rev'd on other grounds, 361 U.S. 529 (1960). If actual perjury does not occur, there is simply no subornation. See id. at 376 (reversing conviction for subornation because of conclusion that, in applying Bronston, witness did not commit perjury due to his literally truthful testimony). Moreover, � 1622 requires that the defendant know that the testimony of witness will be perjurious -- i.e., knowing and willful procurement of false testimony is a key element of subornation of perjury. See Rosen v. NLRB, 735 F.2d 564, 575 n.19 (D.C. Cir. 1984) ("a necessary predicate of the charge of subornation of perjury is the suborner's belief that the testimony sought is in fact false"). Based upon illegal OIC leaks and press reports, we believe that the OIC's principal claims of obstruction, intimidation and subornation -- the three prongs of the January 1998 expansion of jurisdiction -- appear to arise out of: (1) "Talking Points" The so-called "talking points" have been widely hailed as the linchpin of any charge of subornation of perjury or obstruction of justice. Not only were they touted as the "smoking gun" of the investigation, they were instrumental in the OIC efforts to secure an expansion of its jurisdictional authority. Charles Bakaly, the OIC spokesman, appearing on Meet the Press, emphasized the critical nature of this document to the expansion of the OIC jurisdiction: Tim Russert: -- How important is it that we find out who is the author of those talking points? Charles Bakaly: Well, in the grant of jurisdiction that the special division of the D.C. Circuit Court of Appeals gave to Judge Starr after the request of the Attorney General, that was the key mandate to look into, those kinds of issues of subornation of perjury and obstruction of justice. NBC Meet the Press, July 5, 1998 (emphasis added). The "talking points" were the basis of thinly veiled smears, groundless speculation, and allegations against President Clinton, White House aides and others close to the President: "And NBC News has learned more about another critical piece of evidence. A memo first discovered by Newsweek that Linda