This Referral presents substantial and credible information that President Clinton criminally obstructed the judicial process, first in a sexual harassment lawsuit in which he was the defendant and then in a grand jury investigation. The opening section of the Narrative provides an overview of the object of the President's cover-up, the sexual relationship between the President and Ms. Lewinsky. Subsequent sections recount the evolution of the relationship chronologically, including the sexual contacts, the President's efforts to get Ms. Lewinsky a job, Ms. Lewinsky's subpoena in Jones v. Clinton, the role of Vernon Jordan, the President's discussions with Ms. Lewinsky about her affidavit and deposition, the President's deposition testimony in Jones, the President's attempts to coach a potential witness in the harassment case, the President's false and misleading statements to aides and to the American public after the Lewinsky story became public, and, finally, the President's testimony before a federal grand jury.
B. Evidence Establishing Nature of Relationship
1. Physical Evidence
Physical evidence conclusively establishes that the President and Ms. Lewinsky had a sexual relationship. After reaching an immunity and cooperation agreement with the Office of the Independent Counsel on July 28, 1998, Ms. Lewinsky turned over a navy blue dress that she said she had worn during a sexual encounter with the President on February 28, 1997. According to Ms. Lewinsky, she noticed stains on the garment the next time she took it from her closet. From their location, she surmised that the stains were the President's semen.(1)
Initial tests revealed that the stains are in fact semen.(2) Based on that result, the OIC asked the President for a blood sample.(3) After requesting and being given assurances that the OIC had an evidentiary basis for making the request, the President agreed.(4) In the White House Map Room on August 3, 1998, the White House Physician drew a vial of blood from the President in the presence of an FBI agent and an OIC attorney.(5) By conducting the two standard DNA comparison tests, the FBI Laboratory concluded that the President was the source of the DNA obtained from the dress.(6) According to the more sensitive RFLP test, the genetic markers on the semen, which match the President's DNA, are characteristic of one out of 7.87 trillion Caucasians.(7)
In addition to the dress, Ms. Lewinsky provided what she said were answering machine tapes containing brief messages from the President, as well as several gifts that the President had given her.
2. Ms. Lewinsky's Statements
Ms. Lewinsky was extensively debriefed about her relationship with the President. For the initial evaluation of her credibility, she submitted to a detailed "proffer" interview on July 27, 1998.(8) After entering into a cooperation agreement, she was questioned over the course of approximately 15 days. She also provided testimony under oath on three occasions: twice before the grand jury, and, because of the personal and sensitive nature of particular topics, once in a deposition. In addition, Ms. Lewinsky worked with prosecutors and investigators to create an 11-page chart that chronologically lists her contacts with President Clinton, including meetings, phone calls, gifts, and messages.(9) Ms. Lewinsky twice verified the accuracy of the chart under oath.(10)
In the evaluation of experienced prosecutors and investigators, Ms. Lewinsky has provided truthful information. She has not falsely inculpated the President. Harming him, she has testified, is "the last thing in the world I want to do."(11)
Moreover, the OIC's immunity and cooperation agreement with Ms. Lewinsky includes safeguards crafted to ensure that she tells the truth. Court-ordered immunity and written immunity agreements often provide that the witness can be prosecuted only for false statements made during the period of cooperation, and not for the underlying offense. The OIC's agreement goes further, providing that Ms. Lewinsky will lose her immunity altogether if the government can prove to a federal district judge -- by a preponderance of the evidence, not the higher standard of beyond a reasonable doubt -- that she lied. Moreover, the agreement provides that, in the course of such a prosecution, the United States could introduce into evidence the statements made by Ms. Lewinsky during her cooperation. Since Ms. Lewinsky acknowledged in her proffer interview and in debriefings that she violated the law, she has a strong incentive to tell the truth: If she did not, it would be relatively straightforward to void the immunity agreement and prosecute her, using her own admissions against her.
3. Ms. Lewinsky's Confidants
Between 1995 and 1998, Ms. Lewinsky confided in 11 people about her relationship with the President. All have been questioned by the OIC, most before a federal grand jury: Andrew Bleiler, Catherine Allday Davis, Neysa Erbland, Kathleen Estep, Deborah Finerman, Dr. Irene Kassorla, Marcia Lewis, Ashley Raines, Linda Tripp, Natalie Ungvari, and Dale Young.(12) Ms. Lewinsky told most of these confidants about events in her relationship with the President as they occurred, sometimes in considerable detail.
Some of Ms. Lewinsky's statements about the relationship were contemporaneously memorialized. These include deleted email recovered from her home computer and her Pentagon computer, email messages retained by two of the recipients, tape recordings of some of Ms. Lewinsky's conversations with Ms. Tripp, and notes taken by Ms. Tripp during some of their conversations. The Tripp notes, which have been extensively corroborated, refer specifically to places, dates, and times of physical contacts between the President and Ms. Lewinsky.(13)
Everyone in whom Ms. Lewinsky confided in detail believed she was telling the truth about her relationship with the President. Ms. Lewinsky told her psychologist, Dr. Irene Kassorla, about the affair shortly after it began. Thereafter, she related details of sexual encounters soon after they occurred (sometimes calling from her White House office).(14) Ms. Lewinsky showed no indications of delusional thinking, according to Dr. Kassorla, and Dr. Kassorla had no doubts whatsoever about the truth of what Ms. Lewinsky told her.(15) Ms. Lewinsky's friend Catherine Allday Davis testified that she believed Ms. Lewinsky's accounts of the sexual relationship with the President because "I trusted in the way she had confided in me on other things in her life. . . . I just trusted the relationship, so I trusted her."(16) Dale Young, a friend in whom Ms. Lewinsky confided starting in mid-1996, testified:
[I]f she was going to lie to me, she would have said to me, "Oh,
he calls me all the time. He does wonderful things. He can't wait to see
me." . . . [S]he would have embellished the story. You know, she
wouldn't be telling me, "He told me he'd call me, I waited home all
weekend and I didn't do anything and he didn't call and then he didn't
call for two weeks."(17)
In addition to her remarks and email to friends, Ms. Lewinsky wrote a number of documents, including letters and draft letters to the President. Among these documents are (i) papers found in a consensual search of her apartment; (ii) papers that Ms. Lewinsky turned over pursuant to her cooperation agreement, including a calendar with dates circled when she met or talked by telephone with the President in 1996 and 1997; and (iii) files recovered from Ms. Lewinsky's computers at home and at the Pentagon.
5. Consistency and Corroboration
The details of Ms. Lewinsky's many statements have been checked, cross-checked, and corroborated. When negotiations with Ms. Lewinsky in January and February 1998 did not culminate in an agreement, the OIC proceeded with a comprehensive investigation, which generated a great deal of probative evidence.
In July and August 1998, circumstances brought more direct and compelling evidence to the investigation. After the courts rejected a novel privilege claim, Secret Service officers and agents testified about their observations of the President and Ms. Lewinsky in the White House. Ms. Lewinsky agreed to submit to a proffer interview (previous negotiations had deadlocked over her refusal to do so), and, after assessing her credibility in that session, the OIC entered into a cooperation agreement with her. Pursuant to the cooperation agreement, Ms. Lewinsky turned over the dress that proved to bear traces of the President's semen. And the President, who had spurned six invitations to testify, finally agreed to provide his account to the grand jury. In that sworn testimony, he acknowledged "inappropriate intimate contact" with Ms. Lewinsky.
Because of the fashion in which the investigation had unfolded, in sum, a massive quantity of evidence was available to test and verify Ms. Lewinsky's statements during her proffer interview and her later cooperation. Consequently, Ms. Lewinsky's statements have been corroborated to a remarkable degree. Her detailed statements to the grand jury and the OIC in 1998 are consistent with statements to her confidants dating back to 1995, documents that she created, and physical evidence.(18) Moreover, her accounts generally match the testimony of White House staff members; the testimony of Secret Service agents and officers; and White House records showing Ms. Lewinsky's entries and exits, the President's whereabouts, and the President's telephone calls.
C. Sexual Contacts
1. The President's Accounts
a. Jones Testimony
In the Jones deposition on January 17, 1998, the President denied having had "a sexual affair," "sexual relations," or "a sexual relationship" with Ms. Lewinsky.(19) He noted that "[t]here are no curtains on the Oval Office, there are no curtains on my private office, there are no curtains or blinds that can close [on] the windows in my private dining room," and added: "I have done everything I could to avoid the kind of questions you are asking me here today. . . ."(20)
During the deposition, the President's attorney, Robert Bennett, sought to limit questioning about Ms. Lewinsky. Mr. Bennett told Judge Susan Webber Wright that Ms. Lewinsky had executed "an affidavit which [Ms. Jones's lawyers] are in possession of saying that there is absolutely no sex of any kind in any manner, shape or form, with President Clinton." In a subsequent colloquy with Judge Wright, Mr. Bennett declared that as a result of "preparation of [President Clinton] for this deposition, the witness is fully aware of Ms. Lewinsky's affidavit."(21) The President did not dispute his legal representative's assertion that the President and Ms. Lewinsky had had "absolutely no sex of any kind in any manner, shape or form," nor did he dispute the implication that Ms. Lewinsky's affidavit, in denying "a sexual relationship," meant that there was "absolutely no sex of any kind in any manner, shape or form." In subsequent questioning by his attorney, President Clinton testified under oath that Ms. Lewinsky's affidavit was "absolutely true."(22)
b. Grand Jury Testimony
Testifying before the grand jury on August 17, 1998, seven months after his Jones deposition, the President acknowledged "inappropriate intimate contact" with Ms. Lewinsky but maintained that his January deposition testimony was accurate.(23) In his account, "what began as a friendship [with Ms. Lewinsky] came to include this conduct."(24) He said he remembered "meeting her, or having my first real conversation with her during the government shutdown in November of '95." According to the President, the inappropriate contact occurred later (after Ms. Lewinsky's internship had ended), "in early 1996 and once in early 1997."(25)
The President refused to answer questions about the precise nature of his intimate contacts with Ms. Lewinsky, but he did explain his earlier denials.(26) As to his denial in the Jones deposition that he and Ms. Lewinsky had had a "sexual relationship," the President maintained that there can be no sexual relationship without sexual intercourse, regardless of what other sexual activities may transpire. He stated that "most ordinary Americans" would embrace this distinction.(27)
The President also maintained that none of his sexual contacts with Ms. Lewinsky constituted "sexual relations" within a specific definition used in the Jones deposition.(28) Under that definition:
[A] person engages in "sexual relations" when the person
knowingly engages in or causes -- (1) contact with the genitalia, anus,
groin, breast, inner thigh, or buttocks of any person with an intent to
arouse or gratify the sexual desire of any person . . . . "Contact"
means intentional touching, either directly or through clothing.(29)
According to what the President testified was his understanding, this definition "covers contact by the person being deposed with the enumerated areas, if the contact is done with an intent to arouse or gratify," but it does not cover oral sex performed on the person being deposed.(30) He testified:
[I]f the deponent is the person who has oral sex performed on him, then
the contact is with -- not with anything on that list, but with the lips
of another person. It seems to be self-evident that that's what it is. . .
. Let me remind you, sir, I read this carefully.(31)
In the President's view, "any person, reasonable person" would recognize that oral sex performed on the deponent falls outside the definition.(32)
If Ms. Lewinsky performed oral sex on the President, then -- under this interpretation -- she engaged in sexual relations but he did not. The President refused to answer whether Ms. Lewinsky in fact had performed oral sex on him.(33) He did testify that direct contact with Ms. Lewinsky's breasts or genitalia would fall within the definition, and he denied having had any such contact.(34)
2. Ms. Lewinsky's Account
In his grand jury testimony, the President relied heavily on a particular interpretation of "sexual relations" as defined in the Jones deposition. Beyond insisting that his conduct did not fall within the Jones definition, he refused to answer questions about the nature of his physical contact with Ms. Lewinsky, thus placing the grand jury in the position of having to accept his conclusion without being able to explore the underlying facts. This strategy -- evidently an effort to account for possible traces of the President's semen on Ms. Lewinsky's clothing without undermining his position that he did not lie in the Jones deposition -- mandates that this Referral set forth evidence of an explicit nature that otherwise would be omitted.
In light of the President's testimony, Ms. Lewinsky's accounts of their sexual encounters are indispensable for two reasons. First, the detail and consistency of these accounts tend to bolster Ms. Lewinsky's credibility. Second, and particularly important, Ms. Lewinsky contradicts the President on a key issue. According to Ms. Lewinsky, the President touched her breasts and genitalia -- which means that his conduct met the Jones definition of sexual relations even under his theory. On these matters, the evidence of the President's perjury cannot be presented without specific, explicit, and possibly offensive descriptions of sexual encounters.
According to Ms. Lewinsky, she and the President had ten sexual encounters, eight while she worked at the White House and two thereafter.(35) The sexual encounters generally occurred in or near the private study off the Oval Office -- most often in the windowless hallway outside the study.(36) During many of their sexual encounters, the President stood leaning against the doorway of the bathroom across from the study, which, he told Ms. Lewinsky, eased his sore back.(37)
Ms. Lewinsky testified that her physical relationship with the President included oral sex but not sexual intercourse.(38) According to Ms. Lewinsky, she performed oral sex on the President; he never performed oral sex on her.(39) Initially, according to Ms. Lewinsky, the President would not let her perform oral sex to completion. In Ms. Lewinsky's understanding, his refusal was related to "trust and not knowing me well enough."(40) During their last two sexual encounters, both in 1997, he did ejaculate.(41)
According to Ms. Lewinsky, she performed oral sex on the President on nine occasions. On all nine of those occasions, the President fondled and kissed her bare breasts. He touched her genitals, both through her underwear and directly, bringing her to orgasm on two occasions. On one occasion, the President inserted a cigar into her vagina. On another occasion, she and the President had brief genital-to-genital contact.(42)
Whereas the President testified that "what began as a friendship came to include [intimate contact]," Ms. Lewinsky explained that the relationship moved in the opposite direction: "[T]he emotional and friendship aspects . . . developed after the beginning of our sexual relationship."(43)
D. Emotional Attachment
As the relationship developed over time, Ms. Lewinsky grew emotionally attached to President Clinton. She testified: "I never expected to fall in love with the President. I was surprised that I did."(44) Ms. Lewinsky told him of her feelings.(45) At times, she believed that he loved her too.(46) They were physically affectionate: "A lot of hugging, holding hands sometimes. He always used to push the hair out of my face."(47) She called him "Handsome"; on occasion, he called her "Sweetie," "Baby," or sometimes "Dear."(48) He told her that he enjoyed talking to her -- she recalled his saying that the two of them were "emotive and full of fire," and she made him feel young.(50) He said he wished he could spend more time with her.(51)
Ms. Lewinsky told confidants of the emotional underpinnings of the relationship as it evolved. According to her mother, Marcia Lewis, the President once told Ms. Lewinsky that she "had been hurt a lot or something by different men and that he would be her friend or he would help her, not hurt her."(52) According to Ms. Lewinsky's friend Neysa Erbland, President Clinton once confided in Ms. Lewinsky that he was uncertain whether he would remain married after he left the White House. He said in essence, "[W]ho knows what will happen four years from now when I am out of office?" Ms. Lewinsky thought, according to Ms. Erbland, that "maybe she will be his wife."(53)
E. Conversations and Phone Messages
Ms. Lewinsky testified that she and the President "enjoyed talking to each other and being with each other." In her recollection, "We would tell jokes. We would talk about our childhoods. Talk about current events. I was always giving him my stupid ideas about what I thought should be done in the administration or different views on things."(54) One of Ms. Lewinsky's friends testified that, in her understanding, "[The President] would talk about his childhood and growing up, and [Ms. Lewinsky] would relay stories about her childhood and growing up. I guess normal conversations that you would have with someone that you're getting to know."(55)
The longer conversations often occurred after their sexual contact. Ms. Lewinsky testified: "[W]hen I was working there [at the White House] . . . we'd start in the back [in or near the private study] and we'd talk and that was where we were physically intimate, and we'd usually end up, kind of the pillow talk of it, I guess, . . . sitting in the Oval Office . . . ."(56) During several meetings when they were not sexually intimate, they talked in the Oval Office or in the area of the study.(57)
Along with face-to-face meetings, according to Ms. Lewinsky, she spoke on the telephone with the President approximately 50 times, often after 10 p.m. and sometimes well after midnight.(58) The President placed the calls himself or, during working hours, had his secretary, Betty Currie, do so; Ms. Lewinsky could not telephone him directly, though she sometimes reached him through Ms. Currie.(59) Ms. Lewinsky testified: "[W]e spent hours on the phone talking."(60) Their telephone conversations were "[s]imilar to what we discussed in person, just how we were doing. A lot of discussions about my job, when I was trying to come back to the White House and then once I decided to move to New York. . . . We talked about everything under the sun."(61) On 10 to 15 occasions, she and the President had phone sex.(62) After phone sex late one night, the President fell asleep mid-conversation.(63)
On four occasions, the President left very brief messages on Ms. Lewinsky's answering machine, though he told her that he did not like doing so because (in her recollection) he "felt it was a little unsafe."(64) She saved his messages and played the tapes for several confidants, who said they believed that the voice was the President's.(65)
By phone and in person, according to Ms. Lewinsky, she and the President sometimes had arguments. On a number of occasions in 1997, she complained that he had not brought her back from the Pentagon to work in the White House, as he had promised to do after the election.(66) In a face-to-face meeting on July 4, 1997, the President reprimanded her for a letter she had sent him that obliquely threatened to disclose their relationship.(67) During an argument on December 6, 1997, according to Ms. Lewinsky, the President said that "he had never been treated as poorly by anyone else as I treated him," and added that "he spent more time with me than anyone else in the world, aside from his family, friends and staff, which I don't know exactly which category that put me in."(68)
Testifying before the grand jury, the President confirmed that he and
Ms. Lewinsky had had personal conversations, and he acknowledged that
their telephone conversations sometimes included "inappropriate
sexual banter."(69) The
President said that Ms. Lewinsky told him about "her personal life,"
"her upbringing," and "her job ambitions."(70)
After terminating their intimate relationship in 1997, he said, he tried "to
be a friend to Ms. Lewinsky, to be a counselor to her, to give her good
advice, and to help her."(71)