Senator Rick Santorum (Republican - Pennsylvania) Voting Record -- Impeachment Trial of William (Bill) Jefferson Clinton

Statement Taken From U.S. Senate Web Site February 25, 1999

Statement of Senator Rick Santorum Regarding His Votes Cast in the Court of Impeachment

Contact: Press_Office@santorum.senate.gov

Washington, DC - February 12, 1999. Following today’s vote in the Senate Court of Impeachment, U.S. Senator Rick Santorum (R-PA) issued the following statement:

"Today, I was required to cast two of the most difficult votes of my congressional career. After weeks of personal reflection and studying the evidence and facts presented to me, I voted guilty on both articles of impeachment.

The purpose of this ordeal was never to punish the President, but to protect the Republic. We in the Senate never asked for this mission, but having found it on our plates, our obligation under the Constitution was to move forward and to exercise impartial justice. That principle has been uppermost in my mind, and I am confident my vote accurately reflects fulfillment of this mission.

Considering the charge to protect the Republic, there were several factors I felt paramount. First is that the President’s ability to lead has been diminished. Second, I considered the impact the President’s actions had on the American justice system. What makes our constitutional democracy so great is the rule of law. The President’s conduct has not destroyed our rule of law, but it certainly could have an eroding effect.

From the beginning of this process, I focused on undertaking my role as an impartial juror -- a trier of fact. I have examined the history books, the rule of law and the evidence at hand. I have listened carefully and intently to the arguments of the House Managers and the President’s lawyers, and I have listened to my constituents and to my colleagues. What I listened to most intently, however, was my heart and my conscience. In the end, I heard the only right answer and concluded that the prosecutors had made their case. The President, indeed, is guilty as charged.

The Constitution is silent as to what standard of proof is used in impeachment trials. The Congressional Research Service of the Library of Congress has provided me with the following analysis, ‘this report concludes that an examination of the constitutional language, history, and the work of legal scholars provides no definitive answer to the question of what standard is to be applied. In the final analysis, the question is one which historically has been answered by individual Senators guided by their own consciences.’ Under current jurisprudence, there are three commonly used standards: a preponderance of the evidence, clear and convincing evidence, and beyond a reasonable doubt. I have determined beyond a reasonable doubt that the President has committed many of the acts alleged in the Articles.

In the case of Article I, perjury, the fact that it involves the President of the United States weighed heavily on my mind as I analyzed each count. The President was charged with perjury before a federal grand jury, whose purpose was to investigate the President. When the President lied to the grand jury, it was in the most egregious setting for a lie. This federal grand jury was convened specifically to look into acts of the President. The grand jury, an arm of the judicial branch, was investigating the head of the executive branch. The grand jury is one of the checks that make up our system of checks and balances. This represents one of the great strengths of our Republic. Perjury in this context is inherently severe, regardless of the level of egregiousness found within each count. Furthermore, I am deeply concerned about any precedent the Senate sets regarding our nation’s top public official lying before a federal grand jury about material facts. Perjury committed by a President before a federal grand jury constitutes the highest, most egregious form of perjury. If counts 1 and 4 of the perjury charge do not constitute impeachable offenses, then I believe no act of perjury could ever rise to that level. Even more troubling is the subject of his lie. He lied to protect himself from being prosecuted for a crime.

Regarding Article II, constitutional scholar Charles J. Cooper stated, ‘The crime...of obstruction of justice, like the crimes of treason and bribery, are quintessentially offenses against our system of government, visiting injury immediately on society itself, whether or not committed in connection with the exercise of official government powers.’ When the head of the Executive Branch undermines the ability of the Judicial Branch to dispense justice, he has flouted one of the fundamental precepts of our system of government: the system of checks and balances amongst the three branches of government. Without these checks, the Framers recognized that our Republic could fall. The Republic must be protected from a President who threatens the fundamental structure of our governmental system. Removal from office is the Constitutional remedy for such dangers. I have determined that the findings of fact proves the President obstructed justice and I find that obstruction to constitute an impeachable offense.

The will of the Senate has been expressed and now it is time for our nation to put this behind us, satisfied that a complete constitutional process was followed."

Following are excerpts from Senator Santorum’s speech during closed deliberations of the Senate. Due to the fact that references and conversations of other Senators are contained in the full text, the full statement cannot be released.

"My colleagues, I voted for a closed session, and I did so because I felt that we would have an opportunity for deliberation. And I have to admit that I am somewhat disappointed that we did more "speeching" than deliberating. I was really hopeful that we would engage in more discussion, because I was one who came to these final deliberations with my mind not made up, and I was hoping for insight and testing my own feelings on these issues. And I am somewhat disappointed that we did not get there.

I have been praying every day since the House vote that I get this right. Henry Hyde talked about "The Winslow Boy" and the king’s writ — let right be done. I can’t tell you how much that connected with me. I want to do right. And I pray — I prayed this morning, I got down on my knees and prayed. I thought about Abraham Lincoln talking about both sides in the Civil War praying to the same God asking to bless their cause as right. He said that both sides may be, but one side must be wrong. One side is wrong here. In the Civil War, right prevailed. Justice prevailed. Truth, self-evident truth that all men are created equal prevailed, and united us as a Nation, and brought us together with a singular purpose that has carried us through to today.

...I would just ask my colleagues to please think about this. If you don’t find perjury on the facts, that is your decision. I am not going to question you. I respect your opinion. But I pray that you do not make the judgment that these charges as alleged — maybe not as proven but as alleged — do not rise to the level worthy of impeachment because they do...Could I have one additional moment, because I have a prayer I have to offer to you. George Washington, in his final comments in leaving office said, ‘Though in reviewing the incidents of my Administration I am unconscious of intentional error, I am nevertheless too sensible of my defects not to think it probable that I may have committed many errors. Whatever they may be, I fervently beseech the Almighty to avert or mitigate the evils to which they may tend." I pray that for this body.

The following is a detailed discussion of Senator Santorum's decisions regarding the Senate Trial of President Clinton:

I rise today to provide the Senate and the people of Pennsylvania a detailed discussion of my decisions regarding the Senate Trial of President Clinton.

THE CONSTITUTIONAL FRAMEWORK

The Constitution confers on the House of Representatives "the sole Power of Impeachment." (Article I, Sec. 2). The Senate "shall have the Power to try all Impeachments." (Article I, Sec. 3). Within this explicit authority of the Senate to try impeachments, lies the implicit authority that the Senate, and each Senator, is free to independently determine when an act rises to the level of impeachable offense (within the Constitutional limits set forth below).

First, the Framers of the Constitution rejected the idea of impeachment trials coming before the judicial branch. Whether a felonious act has been committed is a question for the judicial branch. Whether a President can be convicted under Articles of Impeachment based on felonious acts is a question for the Senate. In making this distinction, the Framers conferred independent, Constitutional authority on the Senate to determine what constitutes an impeachable offense.

Second, the Framers rejected both broader and narrower terms regarding the impeachment of a President. Under Article II, Section 6, "The President, Vice President, and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors." The degree to which the definition of what constitutes a high crime or misdemeanor is undefined is deliberate. It is deliberate as a means of conferring upon the House and Senate the Constitutional authority to make such determinations.

Therefore, I believe I am required under the Constitution to independently assess whether perjury and obstruction of justice alleged in the Articles of Impeachment before the Senate rise to the level of impeachable offenses.

THE STANDARD OF PROOF

The Constitution is silent as to what standard of proof is used in impeachment trials. The Congressional Research Service of the Library of Congress has provided me with the following analysis, "This report concludes that an examination of the constitutional language, history, and the work of legal scholars provides no definitive answer to the question of what standard is to be applied. In the final analysis the question is one which historically has been answered by individual Senators guided by their own consciences." (CRS 98-990, updated January 7, 1999). Under current jurisprudence, there are three commonly used standards: a preponderance of the evidence, clear and convincing evidence, and beyond a reasonable doubt. I am guided by the most recent Senate action on this issue. In the Senate Trial of the impeachment of Judge Harry Claiborne in 1986, Claiborne's attorneys moved to designate beyond a reasonable doubt as the applicable standard. The Senate overwhelmingly rejected this motion by a vote of 17 yeas to 75 nays. Notably, the Presiding Officer also ruled that rejection of this motion in no way precluded any one Senator from adhering to this standard. As a rough guideline, I have applied the clear and convincing standard to my decisionmaking. However, as will be discussed, I have determined beyond a reasonable doubt that the President has committed many of the acts alleged in the Articles.

CONSTRUCTION ISSUES

I have grave concerns over the inclusion of multiple counts of perjury in one Article of Impeachment. Under Article I, Section 3 of the Constitution, "no Person shall be convicted without the Concurrence of two thirds of the Members present." Under Rule XXIII of the Senate Rules for Impeachment Trials, "An article of impeachment shall not be divisible for the purpose of voting thereon..." I agree with the logic of White House Counsel that four counts of perjury alleged under one Article could potentially allow for two thirds of the Senate to support Article I despite less than two thirds of the Senate agreeing to convict on any one count. However, I do not agree with White House Counsel conclusion that this is inherently unconstitutional. That Rule XXIII is flawed and could potentially lead to an injustice does not mean it is unconstitutional under the broad Constitutional authority conferred upon the Senate with respect to impeachment trials.

The Senate Committee on Rules and Administration examined this issue in 1974 with respect to potential Articles of Impeachment against President Nixon and rewrote Rule XXIII into its current form. As a member of this committee, I intend to have the Rules Committee re-examine this issue and determine a means to prevent any future injustice caused by Articles of Impeachment flawed in their construction.

Second, I am concerned over the absence of specific allegations of perjurious acts in Article I. Perjury, by its very nature, requires the trier of fact to determine whether specific words constitute a lie, and these specific words need to be reflected, if not repeated, in a charge in order for the trier of fact to then find the accused guilty of breaking the law. Further, I agree with White House Counsel Craig's statement that, "The requirement that a defendant be given adequate notice of what he is charged with carries constitutional dimensions, and the failure to provide that notice violates due process of law." Finally, in past Senate Impeachment Trials where perjury has been alleged, the Articles have cited specific perjurious acts. I am concerned over the precedent setting nature of Article I before us.

I was prepared to vote against Article I because of the potential injustice of its construction. However, I have determined that such an injustice will not occur in this case. It is overwhelmingly clear that, were two thirds of the Senate to agree that the President committed perjury, two thirds of the Senate would agree on at least one of the counts within Article I and would agree as to the specific perjurious act.

ARTICLE I PERJURY

For a lie to constitute felony perjury requires two components: that the lie was asserted under oath in the context of a legal proceeding, and that the lie was material to the issue in question. I am guided by Black's Law Dictionary, which defines perjury as follows:

In criminal law, the willful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his evidence either upon oath or in any form allowed by law to be substituted for an oath, whether such evidence is given in open court, or in an affidavit, or otherwise, such assertion being material to the issue or point of inquiry and known to such witness to be false.

Black's defines material as,

Important; more or less necessary; having influence or effect; going to the merits; having to do with matter, as distinguished from form. Representation relating to matter which is so substantial and important as to influence party to whom made is "material."

WHETHER PERJURY CAN RISE TO THE LEVEL OF IMPEACHABLE OFFENSE

The Framers intended there to be no act beyond the Constitutionally enumerated acts of bribery and treason which inherently and automatically rises to the level of impeachable offense. Therefore, whether the felony of perjury is an impeachable offense requires analysis of the facts and context of the given case. Second, the Framers were clear that the purpose of impeachment was not to punish a wrongdoer, but to protect the Republic from a civil official's wrongdoing by ousting him from power. Therefore, the facts and context surrounding the perjurious acts alleged in Article I must demonstrate a degree of egregiousness which requires the republic to be protected from this President.

I believe the best "test" for whether the facts and context demonstrate sufficient egregiousness requires analyzing the two parts which constitute the essence of perjury: materiality and intent. First, assessing how material a lie is to the case-in-chief demonstrates how damaging the lie is to the efforts of the court or grand jury. Second, lies are told for a wide range of reasons, such as to conceal personal matters, professional matters, or to evade prosecution. Therefore, assessing the intent behind the lie demonstrates whether that lie is sufficiently egregious as to be impeachable.

Finally, merely applying this framework to each count below is not enough. That this case involves the President of the United States before a federal grand jury weighs heavily in my mind as I analyze each count. This federal grand jury was convened specifically to look into acts of the President. The grand jury, an arm of the judicial branch, was investigating the head of the executive branch. The grand jury is one of the checks that make up our system of checks and balances. This represents one of the great strengths of our Republic. Perjury in this context is inherently severe, regardless of the level of egregiousness found within each count discussed below.

Further, I am deeply concerned about any precedent the Senate sets regarding our nation's top public official lying before a federal grand jury about material facts. As a federal district court stated in a 1998 case, U.S. v. Blackley, involving a government official:

The defendant stands before me as a high ranking Government official convicted of making false statements under oath. This is such a serious crime that it demands an even longer term of imprisonment in this court's view. This court has a duty to send a message to other high-level Government officials that there is a severe penalty to be paid for providing false information under oath. There is a strong reason to deter such conduct and to dispel all of the nonsense that's being publicly discussed and debated about the seriousness of lying under oath by Government officials. A democracy like ours depends on people having trust in our Government and its officials. [Italics added]

As a precedent setting body, I believe the Senate shares the same duty put forth by this court where the fundamentals of our democracy are involved. Perjury committed by a President before a federal grand jury constitutes the highest, most egregious form of perjury. If perjury is ever to rise to the level of impeachable offense, then it must do so in this case. If Counts 1 and 4, discussed below, do not constitute impeachable offenses, then I believe no act of perjury could ever rise to that level. I am concerned by this, as our duty is to weigh precedent as much as it is to thoroughly analyze the merits of the counts below.

COUNT 1: PRESIDENT CLINTON PROVIDED PERJURIOUS TESTIMONY TO THE GRAND JURY CONCERNING THE NATURE AND DETAILS OF HIS RELATIONSHIP WITH A SUBORDINATE GOVERNMENT EMPLOYEE (MS. LEWINSKY)

FINDING OF FACT

The President asserted in his testimony before the federal grand jury that he did not have intimate contact with Ms. Lewinsky as defined in the Jones deposition. House Managers argue that such contact occurred on numerous occasions. Regrettably, necessary analysis of the findings of fact requires some sensitive and unpleasant discussion. I believe the evidence provides proof beyond a reasonable doubt that such additional contact occurred. First, Ms. Lewinsky testified in great detail as to nine incidents where contact, denied by the President, occurred. Second, Ms. Lewinsky testified to both these acts and the acts the President agreed had occurred before there was legal significance to differentiating between the acts (under the Jones deposition definition of sexual relations). Third, after learning of the significance of the Jones definition and after receiving immunity for any prior perjurious statements, Ms. Lewinsky stood by her description of the encounters. Fourth, during her physical relationship with the President, and before any legal issues came to bear regarding that relationship, Ms. Lewinsky contemporaneously told numerous friends, family, and counselors of that nature of her physical contact with the President. Finally, a file on Ms. Lewinsky's computer contained a draft letter to the President where she refers to certain physical acts. It is inconceivable that a private, draft letter to the President would discuss their physical relationship yet, the one phrase which would prove to have critical legal significance years later, would be a total fabrication.

White House Counsel argues that the President did not deny before the grand jury that he had contact with Ms. Lewinsky in a manner included in the Jones definition of sexual relations. Rather, Counsel asserts that such contact did not fully satisfy the Jones definition, which requires the intent to arouse or gratify sexual desire. It is unfathomable, as a matter of common sense, White House Counsel's assertion that such physical contact occurred without any component of intent as defined under the Jones definition. Further, the President's testimony before the grand jury undermines Counsel's defense in that he actually denies any such contact during the following exchange:

Q: So touching, in your view then and now - the person being deposed touching or kissing the breast of another person would fall within the definition?

A: That's correct sir.

Q: And you testified that you didn't have sexual relations with Monica Lewinsky in the Jones deposition, under that definition, correct?

A: Yes, sir.

Therefore, I find that the President lied before the federal grand jury when he stated that he did not have certain physical contact with Ms. Lewinsky. This lie was material to the grand jury investigation into this relationship and, therefore, constitutes perjury.

WHETHER THIS ACT OF PERJURY IS AN IMPEACHABLE OFFENSE

Applying the analytical framework outlined above, The grand jury's purpose in August, 1998, was to investigate whether the President committed perjury in his testimony in the Jones case regarding his relationship with Lewinsky. Therefore, the truthfulness of the President's Grand Jury testimony over the nature of his relationship with Lewinsky is extremely material to the Grand Jury's investigation. The President's answers to the grand jury questions regarding his sexual contact with Lewinsky cut to the very core of why the Grand Jury had convened, therefore demonstrating his testimony to be extraordinarily material.

Regarding intent, when the President lied to the grand jury, he was not lying to cover up a personal matter. He had just admitted to the grand jury that he had an inappropriate physical relationship with Ms. Lewinsky. In fact, to deny certain physical contact actually portrays a more disturbing picture of the President's personal affair. The only reason for this lie was to protect himself from prosecution for perjury in the Jones deposition. This is a lie intended to aid in the evasion of prosecution. I find that lying to evade the law constitutes the most sinister of motives for perjury.

When the President lied to the grand jury about the physical contact he had with Lewinsky he was committing perjury. The context of this perjury demonstrates a concerted effort on the part of the nation's chief law enforcement officer to evade the law by lying about facts fundamentally material to the case in chief. For this reason, I find this particular incident of perjury so egregious as to rise to the level of an impeachable offense. I support conviction under this count of Article I.

COUNT 2: PRESIDENT CLINTON PROVIDED PERJURIOUS TESTIMONY TO THE GRAND JURY CONCERNING PRIOR PERJURIOUS, FALSE AND MISLEADING TESTIMONY HE GAVE IN A FEDERAL CIVIL RIGHTS ACTION BROUGHT AGAINST HIM (THE JONES CASE)

FINDING OF FACT

I do not find the House Managers to have established by clear and convincing evidence that the President lied to the grand jury regarding his testimony in the Jones deposition. I am disturbed by the President's carefully crafted assertions clearly designed to avoid choosing between perjury before the grand jury and de facto admission to perjury in the Jones deposition. However, I do not support conviction under this count of Article I, where the underlying facts do not meet a standard a proof I believe is necessary for such conviction.

COUNT 3: PRESIDENT CLINTON PROVIDED PERJURIOUS TESTIMONY TO THE GRAND JURY CONCERNING PRIOR FALSE AND MISLEADING STATEMENTS HE ALLOWED HIS ATTORNEY TO MAKE TO A FEDERAL JUDGE IN A FEDERAL CIVIL RIGHTS ACTION BROUGHT AGAINST HIM (THE JONES CASE)

FINDING OF FACT

There are two steps to the finding of fact under this count. First, I do not find House Managers established by clear and convincing evidence that the President deliberately failed to correct misstatements of fact asserted by his attorney in the Jones case. Second, I find House Managers failed to establish by clear and convincing evidence that the President lied to the grand jury in his explanation of why he did not correct the misstatements of fact asserted by his attorney in the Jones case.

I believe that the President, a well trained lawyer, was paying full attention to his attorney during the Jones deposition on an issue critical to his legal situation. However, the only evidence offered to prove this fact is videotape of the President, not speaking, while his attorney, off camera, made certain assertions. This evidence is insufficient to demonstrate the motivation behind the President's physical appearance and verbal silence.

I am disturbed by the President's grand jury testimony regarding this incident in the Jones case. His semantic contortion of the definition of the word "is" demonstrates the great lengths to which the President went to evade the grand jury's questions. However, I do not find his definition, standing alone, sufficient proof of perjury.

Therefore, I do not support conviction under this count of Article I, where the underlying facts do not meet a standard of proof I believe is necessary for such conviction.

COUNT 4: THE PRESIDENT PROVIDED PERJURIOUS TESTIMONY TO THE GRAND JURY CONCERNING HIS CORRUPT EFFORTS TO INFLUENCE THE TESTIMONY OF WITNESSES AND TO IMPEDE THE DISCOVERY OF EVIDENCE IN THAT CIVIL RIGHTS ACTION.

FINDING OF FACT

House Managers assert that on Sunday, January 18, 1998, the day after the President's Jones deposition, and again on January 20th or 21st, the President met with his secretary, Ms. Currie, and made the following statements:

1. I was never really alone with Monica, right?

2. You were always there when Monica was there, right?

3. Monica came on to me, and I never touched her, right?

4. You could see and hear everything, right?

5. She wanted to have sex with me, and I cannot do that.

White House counsel do not deny that the President met with Ms. Currie on January 18th and January 20th, or that he made statements of this nature.

House Managers assert the President committed perjury before the grand jury when he testified that these statements to Ms. Currie were intended to refresh his memory of his contacts with Ms. Lewinsky. White House Counsel assert that this was, in fact, why the President made these statements. The President testified before the grand jury as follows:

Q: So, you wanted to check her [Ms. Currie] memory for what she remembered, and that is whether she remembered nothing, or whether she remembered an inappropriate intimate relationship?

A: No. I didn't ask her about it in that way.

I thought what would happen is that it would break in the press, and I was trying to get the facts down. I was trying to understand what the facts were.

I was trying to get information in a hurry. I was downloading what I remembered.

I find beyond a reasonable doubt that the President lied to the grand jury as to why he made these statements on January 18, 1998. First, even if Ms. Currie's recollection of the specific words of the President is not entirely accurate, the President has agreed that he did, in fact, utter words to that effect. Second, the President testified before the grand jury that he had an inappropriate physical relationship with Ms. Lewinsky carried on behind closed doors. Therefore, it is inconceivable that the President would need to refresh his memory through questioning his secretary about a secret physical relationship he knew she knew nothing about. The President could not refresh his memory with statements he knew to be false. To assert otherwise before a grand jury is to lie, and this lie is perjurious in that this matter is material to the purpose of the grand jury's investigation.

WHETHER THIS ACT OF PERJURY IS AN IMPEACHABLE OFFENSE

Applying the analytical framework outlined above, I find this act of perjury to be extraordinarily material to the purpose of the grand jury investigation. The grand jury was convened, in part, to determine whether the President obstructed justice with respect to the Jones case. This included investigation into whether the President's statements to Ms. Currie on January 18 constituted obstruction of justice, as Ms. Currie was a potential witness in the Jones case. Therefore, any statements the President made to the grand jury regarding his conversation with Ms. Currie cut to the very core of why the grand jury had been convened.

Regarding intent, I find the President's motive for perjury to be particularly egregious. The only reason for this lie was to mislead the grand jury into thinking that his conversation with Ms. Currie was intended to refresh his memory of his contacts with Ms. Lewinsky. Misleading the grand jury in this regard was solely designed to hinder the grand jury's investigation into whether the conversation of January 18th constituted obstruction of justice. This is a lie intended to aid in the evasion of prosecution. I find that lying to evade the law constitutes the most sinister of motives for perjury.

When the President lied to the grand jury about why he had the discussion with Ms. Carrie on January 18th, he was committing perjury. The context of this perjury demonstrates a concerted effort on the part of the nation's chief law enforcement officer to evade the law by lying about facts fundamentally material to the case in chief. For this reason, I find this particular incident of perjury so egregious as to rise to the level of an impeachable offense. I support conviction under this count of Article I.

ARTICLE II

WHETHER OBSTRUCTION OF JUSTICE CAN RISE TO THE LEVEL OF IMPEACHABLE OFFENSE

As discussed with respect to perjury, I believe impeachable offenses can only be determined on a case by case basis. Nonetheless, I am guided by the constitutional scholar, Charles J. Cooper, who stated,

The crime...of obstruction of justice, like the crimes of treason and bribery, are quintessentially offenses against our system of government, visiting injury immediately on society itself, whether or not committed in connection with the exercise of official government powers.

When the head of the Executive Branch undermines the ability of the Judicial Branch to dispense justice, that head has flouted one of the fundamental precepts of our system of government: the system of checks and balances amongst the three branches of government. Without these checks, the Framers recognized that our Republic could fall. The Republic must be protected from a President who threatens the fundamental structure of our governmental system. Removal from office is the Constitutional remedy for such dangers. Therefore, in each count below where my finding of fact proves the President obstructed justice, I find that obstruction to constitute an impeachable offense.

COUNT 1: ON OR ABOUT DECEMBER 17, 1997, THE PRESIDENT CORRUPTLY ENCOURAGED A WITNESS IN A FEDERAL CIVIL RIGHTS ACTION BROUGHT AGAINST HIM TO EXECUTE A SWORN AFFIDAVIT IN THAT PROCEEDING THAT HE KNEW TO BE PERJURIOUS

FINDING OF FACT

House Managers and White House Counsel do not dispute that the President learned on December 5, 1997, that Ms. Lewinsky was a potential witness in the Jones case. Both parties further agree that Judge Webber properly issued an order on December 11th allowing the testimony of Ms. Lewinsky in the Jones case. Both parties also stipulate that the President met with his lawyers numerous times throughout December, 1997, with respect to the Jones case. Finally, both parties stipulate that, on December 17th, the President called Ms. Lewinsky and informed her that she was on the Jones witness list.

I find that House Managers have established beyond a reasonable doubt that, during this telephone call, the President raised the issue of Ms. Lewinsky signing an affidavit instead of testifying. Ms. Lewinsky has testified in numerous settings, including her recent deposition before the Senate, that the President raised the matter of an affidavit. Ms. Lewinsky has testified in her deposition before the Senate that she did not know what an affidavit was, and White House Counsel does not dispute this.

I find beyond a reasonable doubt that when the President raised the issue of Ms. Lewinsky signing an affidavit in lieu of testimony, the President was manipulating Ms. Lewinsky into signing a false affidavit. A truthful affidavit would have meant, with absolute certainty, that Ms. Lewinsky would testify in the Jones case because that affidavit would have been critically material to that case. The President knew this, and White House Counsel arguments about whether Ms. Lewinsky knew this are irrelevant as to whether the President was intending to obstruct justice here. The President knew a truthful affidavit would have severely damaged him with respect to his legal situation in the Jones case, his personal life, and his political life. There was nothing but disincentive for the President to urge Ms. Lewinsky to sign a truthful affidavit. Equally, for the President to raise the issue of an affidavit without consideration of its truthfulness lacks credibility. Therefore, I find that when the President encouraged Ms. Lewinsky to sign an affidavit, he was encouraging her to sign a false affidavit. This constitutes an obstruction of justice. I support conviction under this count of Article II.

COUNT 2: ON OR ABOUT DECEMBER 17, 1997, THE PRESIDENT CORRUPTLY ENCOURAGED A WITNESS IN A FEDERAL CIVIL RIGHTS ACTION BROUGHT AGAINST HIM TO GIVE PERJURIOUS, FALSE AND MISLEADING TESTIMONY IF AND WHEN CALLED TO TESTIFY PERSONALLY IN THAT PROCEEDING.

FINDING OF FACT

I find House Managers have proven beyond a reasonable doubt that President Clinton obstructed justice by encouraging Ms. Lewinsky to lie if called to testify in the Jones case. White House Counsel does not dispute the Managers' contention that on December 17, 1997, the President and Ms. Lewinsky discussed the cover story they had been using over the years to conceal their physical relationship. This discussion occurred in the same conversation in which the President informed Ms. Lewinsky she was on the Jones witness list. As an attorney, and having met frequently with his attorneys regarding the Jones case, the President knew that the December 5th, 1997, notification that Ms. Lewinsky was on the Jones witness list marked the moment when this relationship became inextricably linked to a legal proceeding. Finally, when the President testified in the Jones case, he used word for word the same cover story he discussed with Ms. Lewinsky on December 17th. This is extremely weighty circumstantial evidence that the President urged Ms. Lewinsky to adopt their cover story because he labored to comport his later testimony in the Jones deposition with this prior discussion.

For all the reasons discussed above, I find that when the President discussed the cover story with Lewinsky on December 17th, he knew the significance of their relationship with respect to the Jones case and intended the untruthful cover story to be used by Ms. Lewinsky in that case. This constitutes an obstruction of justice and I support conviction under this count of Article II.

COUNT 3: ON OR ABOUT DECEMBER 28, 1997, THE PRESIDENT CORRUPTLY ENGAGED IN, ENCOURAGED, OR SUPPORTED A SCHEME TO CONCEAL EVIDENCE THAT HAD BEEN SUBPOENAED IN A FEDERAL CIVIL RIGHTS ACTIONS BROUGHT AGAINST HIM.

FINDING OF FACT

Both parties stipulate that Ms. Lewinsky and Ms. Currie spoke on December 28th, 1997 regarding gifts the President had given Ms. Lewinsky. Both parties further agree that Ms. Currie received these gifts from Ms. Lewinsky and placed them under her bed. Finally, these gifts were concealed after both Ms. Lewinsky and the President knew that the Jones' attorneys had knowledge of at least one gift being exchanged between the two. The issue here with respect to whether the President had gifts concealed to obstruct justice concerns the nexus between Ms. Currie's act of concealing the gifts and the President's involvement.

House Managers have established by clear and convincing evidence that Ms. Currie telephoned Ms. Lewinsky about the gifts. They have further established that Ms. Currie did not know of the gifts prior to the immediate time surrounding the transfer. Therefore, it could only have been the President who informed Ms. Currie of the gifts and it could only have been the President who instructed Ms. Currie to retrieve the gifts. White House Counsel contends that Ms. Lewinsky could have instigated the telephone call to Ms. Currie, told her of the gifts and asked her to retrieve them. White House Counsel put forth insufficient evidence to support these facts. Further, even if Counsel is correct, it is not believable that the President's secretary would have retrieved the President's gifts, hidden them in her personal dwelling, all during a critical moment in the Jones case, without having informed her boss.

White House Counsel also argues that if the President were intent upon concealing gifts, he would not have given Ms. Lewinsky an additional gift in late December. First, his last gift differs in that it came after the end of their physical relationship, which the President knew to be the period of time in which the Jones attorney's were interested. Second, the narrowly construed logic of Counsel's argument is vastly weaker than the Manager's establishment of actual facts. Third, the President mentioned he had a gift for Ms. Lewinsky during his telephone call to her on December 17th, before he knew the Jones lawyers knew of at least one gift (the hatpin). The President learned of the Jones' knowledge of the hatpin on December 19th, when the subpoena for Ms. Lewinsky referenced the gift. Therefore, for the President not to follow through with actually giving Ms. Lewinsky the gift on December 28th after learning that gifts had taken on legal significance would have looked highly suspect. The President had no choice but to give her the final gift. Finally, one could argue with equal veracity that, because the President and his attorneys were well aware by late December of the significance of two years of gift giving, the President gave a final gift as part of a legal defense strategy.

I find that the President's integral involvement with the concealing of gifts constitutes an obstruction of justice with respect to the Jones case and warrants conviction under this count of Article II.

COUNT 4: BEGINNING ON OR ABOUT DECEMBER 7, 1997, AND CONTINUING THROUGH AND INCLUDING JANUARY 14, 1998, THE PRESIDENT INTENSIFIED AND SUCCEEDED IN AN EFFORT TO SECURE JOB ASSISTANCE TO A WITNESS IN A FEDERAL CIVIL RIGHTS ACTION BROUGHT AGAINST HIM IN ORDER TO CORRUPTLY PREVENT THE TRUTHFUL TESTIMONY OF THAT WITNESS IN THAT PROCEEDING AT A TIME WHEN THE TRUTHFUL TESTIMONY OF THAT WITNESS WOULD HAVE BEEN HARMFUL TO HIM.

FINDING OF FACT

Both House Managers and White House Counsel have sufficiently agreed to the number and nature of contacts between Mr. Jordan, Ms. Lewinsky, and the President regarding Ms. Lewinsky's interest in finding a job. Further, both Managers and Counsel agree as to the close, personal relationship between the President and Mr. Jordan extending back over twenty-five years.

White House Counsel relies heavily on the testimony of Mr. Jordan regarding this nexus. Mr. Jordan's extensive testimony about his view as to whether his job search efforts were tied to Ms. Lewinsky signing an affidavit is irrelevant. The issue is the President's state of mind.

Both parties agree that the President asked Mr. Jordan to find a job for Ms. Lewinsky. The President knew Mr. Jordan was acting on his behalf. The President also knew that Mr. Jordan was dealing with Ms. Lewinsky and the affidavit. It is inconceivable that the President directed one person, a close confident of twenty-five years, to handle two sensitive matters, both concerning the same person, without intending there to be a nexus between the two.

I find by clear and convincing evidence that the President's effort to secure a job for Ms. Lewinsky was inextricably linked to his interest in Ms. Lewinsky submitting a false affidavit in the Jones case. This constitutes an obstruction of justice by the President and warrants conviction under this count of Article II.

COUNT 5: ON JANUARY 17, 1998, AT HIS DEPOSITION IN A FEDERAL CIVIL RIGHTS ACTION BROUGHT AGAINST HIM, THE PRESIDENT CORRUPTLY ALLOWED HIS ATTORNEY TO MAKE FALSE AND MISLEADING STATEMENTS TO A FEDERAL JUDGE CHARACTERIZING AN AFFIDAVIT, IN ORDER TO PREVENT QUESTIONING DEEMED RELEVANT BY THE JUDGE. SUCH FALSE AND MISLEADING STATEMENTS WERE SUBSEQUENTLY ACKNOWLEDGED BY HIS ATTORNEY IN A COMMUNICATION TO THAT JUDGE.

FINDING OF FACT

I do not find House Managers established by clear and convincing evidence that the President deliberately failed to correct the misstatements of fact asserted by his attorney in the Jones case.

I believe that the President, a well trained lawyer, was paying full attention to his attorney during the Jones deposition on an issue critical to his legal situation. However, the only evidence offered to prove this fact is videotape of the President, not speaking, while his attorney, off camera, made certain assertions. This evidence is insufficient to demonstrate the motivation behind the President's physical appearance and verbal silence, much less to prove that he was deliberately obstructing justice.

I do not support conviction under this count of Article II as the underlying facts do not meet a standard of proof I believe is necessary for such conviction.

COUNT 6: ON OR ABOUT JANUARY 18 AND JANUARY 20-21, 1998, THE PRESIDENT RELATED A FALSE AND MISLEADING ACCOUNT OF EVENTS RELEVANT TO A FEDERAL CIVIL RIGHTS ACTION BROUGHT AGAINST HIM TO A POTENTIAL WITNESS IN THAT PROCEEDING, IN ORDER TO CORRUPTLY INFLUENCE THE TESTIMONY OF THAT WITNESS.

FINDING OF FACT

House Managers assert that on Sunday, January 18, 1998, the day after the President's Jones deposition, and again on January 20th or 21st, the President met with his secretary, Ms. Currie, and made the following statements:

1. I was never really alone with Monica, right?

2. You were always there when Monica was there, right?

3. Monica came on to me, and I never touched her, right?

4. You could see and hear everything, right?

5. She wanted to have sex with me, and I cannot do that.

White House counsel do not deny that the President met with Ms. Currie on January 18th and January 20th, or that he made statements of this nature.

I find beyond a reasonable doubt that the President was seeking to influence the testimony of a potential witness.

First, both parties agree that, based on what the President has since admitted to, these statements were false. The President was alone with Ms. Lewinsky, and Ms. Currie did not see and hear everything. Asserting falsehoods before a subordinate is suspect behavior, but does not necessarily demonstrate the intent behind those assertions. White House Counsel contends the President was seeking to refresh his memory. As discussed under Count 4 of Article I above, this is utterly implausible as the President could not refresh his memory with statements he knew to be false. White House Counsel also contends that the President was preparing for his relationship with Ms. Lewinsky to appear in the press when he stated before the grand jury:

I thought what would happen is that it would break in the press, and I was trying to get the facts down. I was trying to understand what the facts were.

If the President were preparing himself for press questions, Counsel's assertion is implausible for, again, the President could not refresh his memory with statements he knew to be false. If Counsel contends the President was preparing Ms. Currie for the press, Counsel has utterly failed to explain why his personal secretary, who had never before dealt with any press matters for the President, would suddenly need to be prepared directly by the President for press questions and without any of his large cadre of press staff present. Counsel has failed to demonstrate that the intent behind the President's statements to Ms. Currie were anything but an effort to manipulate Ms. Currie's likely upcoming testimony in the Jones case.

Second, the President clearly knew that Ms. Currie, his personal secretary, was likely to be called as a witness in the Jones case regarding acts by the President in his office. In fact, she was put on the witness list by the Jones attorneys that week. White House Counsel argues that Ms. Currie had not yet been subpoenaed to testify. This lacks merit as any effort to coach a potential witness constitutes obstruction even if such witness is never called.

Third, the President is Ms. Currie's boss. In fact, in this particular conversation with his employee, the President took the extremely rare step of calling Ms. Currie into the White House on a Sunday. White House Counsel assert that Ms. Currie felt no pressure from the President to make false statements in the Jones case. This is irrelevant. It is the President's actions and his intent, not the efficacy of his actions, that are at issue.

Therefore, I find that when the President made false statements to his personal secretary, knowing that she was likely to be called to testify about matters related to these false statements, the President was clearly and solely laboring to affect the testimony of Ms. Currie. This constitutes an egregious obstruction of justice and warrants conviction under this count of Article II.

COUNT 7: ON OR ABOUT JANUARY 21, 23, AND 26, 1998, THE PRESIDENT MADE FALSE AND MISLEADING STATEMENTS TO POTENTIAL WITNESSES IN A FEDERAL GRAND JURY PROCEEDING IN ORDER TO CORRUPTLY INFLUENCE THE TESTIMONY OF THOSE WITNESSES. THE FALSE AND MISLEADING STATEMENTS MADE BY THE PRESIDENT WERE REPEATED BY THE WITNESSES TO THE GRAND JURY, CAUSING THE GRAND JURY TO RECEIVE FALSE AND MISLEADING INFORMATION.

Article II asserts that the President obstructed justice "related to a Federal civil rights action brought against him in a duly instituted judicial proceeding." Count 7 charges the President with obstructing justice with respect to potential witnesses before a federal grand jury. Therefore, count 7 does not support Article II. As a result of this faulty construction, the President does not warrant conviction under count 7 of Article II.

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