Three months to the day after receipt of the independent counsel's referral, and after failing to call a single fact witness to bolster the independent counsel's allegations, the majority members of the House Judiciary Committee have now issued their proposed articles of impeachment against President William Jefferson Clinton.

Significantly, the majority members issued their proposed articles before even hearing the closing arguments of their own counsel or counsel for the minority. We list below the majority's proposed charges, and the key legal and factual arguments that, as a preliminary matter, erode the foundation for the majority's allegations and establish that there is no basis for an impeachment of the president.

Allegation that the president testified falsely concerning his understanding of definition of "sexual relations" in the Jones deposition:

-- It is impossible to accuse someone of false statements under oath based on their subjective understanding of a technical legal definition.

-- The definition was legalistic, confusing, amended by the judge during the deposition and used over the objections of the president's lawyer, who invited the Jones attorneys to ask direct questions instead.

-- The president's lawyer objected to the definition. "I think this could really lead to confusion, and I think it's important that the record be clear. ..." (Clinton 1/17/98 deposition)

-- Counsel for co-defendant, trooper Danny Ferguson, also objected. "Frankly, I think it's a political trick (the definition), and I've told you before how I feel about the political character of this lawsuit." (Clinton 1/17/98 deposition)

-- The president testified truthfully that he understood the definition of "sexual relations" given to him in the Jones deposition not to include oral sex performed on him. (Clinton 8/17/98 grand jury)

--The president's strict adherence to the terms of the technical definition drafted by the Jones lawyers was perfectly appropriate in light of the legal context in which the statements were made and the conduct of the Jones attorneys. "I was not trying to be particularly helpful to them." (Clinton 8/17/98 grand jury)

Allegation that the president testified falsely before the grand jury about his sexual contacts with Ms. Lewinsky:

-- The issue of whether the president engaged in certain types of intimate contact with Ms. Lewinsky was immaterial to the Jones lawsuit because their relationship was not evidence of sexual harassment. Since the grand jury's investigation focused on false statements that were not material to the underlying civil litigation, any false statements on this topic during the president's grand jury appearance were likewise immaterial.

-- Lewinsky's account does not present clear and convincing evidence of intentionally false statements by the president on this topic. The OIC's referral completely rules out the possibility that Lewinsky's memory is inaccurate or that she is untruthful. "There can be no contention that one of them has a lack of memory or is mistaken." (Starr referral) In fact, however, the OIC's investigation amassed considerable evidence that Lewinsky's memory is not perfect or infallible.

-- Lewinsky has no memory of key points in her proffer. (Lewinsky 8/6/98 grand jury) The OIC prosecutors suggested during her questioning that one reason for her inability to remember may be her guilt over getting Jordan in trouble. (Lewinsky 8/6/98 grand jury)

-- Lewinsky's memory is impaired by prescription drugs. Lewinsky has used Effexor and Serzone since February 1995, both of which cause "some memory to be suppressed." (Lewinsky 7/28/98)

-- Lewinsky is not always truthful. The referral acknowledges (in a footnote) that it had suspicions about Lewinsky's truthfulness due to her perjurious Jones affidavit, her efforts to get Tripp to lie, her statement to Tripp that she had been raised to lie, and her forgery of a letter in college. (Starr referral)

-- Lewinsky told Tripp that she had been reared to lie, lies easily and has a lot of practice. (Tripp Tape 6) ("I have lied my entire life.")

-- Lewinsky has not always been accurate in recounting details of her relationship with the president. Lewinsky was not truthful when she told her friend about the president visiting her apartment. Kathleen Estep testified that she believes that Lewinsky was lying when she told her that the president was brought to her apartment at 2 a.m. by the Secret Service. (Estep 8/23/98) This never happened. Lewinsky was not truthful when she told Dale Young that she recorded some of the president's late night telephone calls to her. (Young 6/23/98 grand jury) No such recordings were ever recovered by the OIC.

-- White House steward Bayani Nelvis denied under oath Lewinsky's assertions that he called her from the Vineyard to say that the president and first lady were fighting, that the first lady was going to Princess Diana's funeral in London, and that Lewinsky should come to the Vineyard. (Nelvis 3/12/98 grand jury)

-- Lewinsky's account of her sexual contacts with president contradict her grand jury testimony. Although the referral characterizes Lewinsky's statements to her friends as "consistent," they actually contradict her grand jury testimony on several points. (Starr referral)

-- Lewinsky gave a friend details about a sexual encounter with the president which contradict her grand jury testimony. (Erbland 2/12/98 grand jury)

-- Lewinsky also told Ashley Raines and Linda Tripp that her sexual relations with the president included activities which she disavowed in her grand jury testimony. (Starr referral)

-- The president's recollection is not perfect. The president testified that his memory is no longer as good as it was due to the stress of his job and the OIC's investigation. (Clinton 8/17/98 grand jury)

-- Lewinsky testified that the president may not remember some of their physical contacts. (Lewinsky 8/20/98 grand jury)

-- OIC claims Lewinsky is truthful although she cannot remember key details due to guilt. The OIC suggested to the grand jury that Lewinsky truthfully could not remember her conversation with Jordan about her intent to deny a sexual relationship with the president because of her guilt about getting Jordan in trouble. (Lewinsky 8/6/99 grand jury) The president's recollection may be similarly clouded by his guilt over his conduct.

Allegation that the president testified falsely to the grand jury about when his relationship with Lewinsky began:

-- The issue is totally irrelevant. The president has admitted that he had an inappropriate relationship with Lewinsky. The differing recollections of Lewinsky and the president as to when the relationship began are irrelevant to the grand jury's inquiry into whether Clinton lied or obstructed justice in the Jones case.

-- There is no evidence that the president was motivated to lie to the grand jury on this point due to fear of embarrassment over the fact that Lewinsky was an intern at the time she claims their relationship began. According to Lewinsky's Aug. 24 interview, however, the president remarked about the pass because he was concerned with the issue of Lewinsky's access to the West Wing, rather than her status as an intern.

-- Majority counsel dropped this charge. Chief Majority Counsel David Schippers, in his presentation of 15 possible grounds of impeachment to the committee, declined to allege that the president's testimony concerning when his relationship with Lewinsky began was intentionally false (probably because it is so unpersuasive and irrelevant).

-- These statements, even if intentionally false, did not even rise to the level of perjury due to their lack of materiality to the underlying claim. Ms. Jones would have lost her suit due to her inability to demonstrate any real injury regardless of the president's answers concerning Lewinsky.

-- The president testified in his grand jury appearance that he understands a "sexual" relationship to include intercourse. (Clinton 8/17/98 grand jury)

-- Lewinsky also believed that she had not had sexual relations with the president. (Tripp tape 18, 10/3/97)

-- Dictionary definitions of "sexual relations" support the president's interpretation.

Allegation that the president testified falsely about meeting alone with Lewinsky:

-- The president did acknowledge that he might have been alone with Lewinsky, although he was misleading about the circumstances of those meetings.

-- Lack of materiality. For the same reason that the president's responses about his relationship with Lewinsky are immaterial, related issues such as these, which were only relevant to the extent they suggested that the president had a relationship with the president, are also immaterial.

-- The questions posed to the president concerning this topic were too imprecise to support a conclusion that the president testified falsely.

-- President testified in the grand jury that he believed his response was correct because he was never alone with Lewinsky in the Oval Office area. (Clinton 8/17/98 grand jury)

-- Currie agreed with Clinton's statement that president was never "alone" with Lewinsky. (Currie 1/24/98)

Allegation that the president testified falsely about gifts he exchanged with Lewinsky:

-- The president readily acknowledged he had given gifts to Lewinsky and received them from her. (Clinton 1/17/98 deposition; Clinton 8/17/98 grand jury) ("I think what I meant there was I don't recall what they were, not that I don't recall whether I had given them.")

-- The president was not concerned about the Jones lawyers discovering that he had exchanged gifts with Lewinsky because he did not believe that the gifts would necessarily signify an intimate relationship between himself and Lewinsky. (Clinton 8/17/98 grand jury)

-- President was aware from specificity of questions by Jones lawyers that they had information concerning the gifts -- there was no point in his dissembling on this issue. (Clinton 8/17/98 grand jury)

-- The president gave Lewinsky additional gifts after learning of the subpoena, proving that he had no motive to lie about them. (Starr referral)

-- The president receives hundred of gifts a year and it is reasonable that he would not remember them all. (Clinton 8/17/98 grand jury)

-- The circumstances surrounding the specific gifts about which the president was asked demonstrate that his failure to specifically recall them was not intentionally false.

Allegation that the president testified falsely when he was asked whether he had talked with Lewinsky about the possibility she would be asked to testify in the Jones case:

-- The president truthfully described one incident where he discussed the Jones case when he joked with Lewinsky about the fact that the Jones attorneys were going to subpoena every woman he knew. True responses that are evasive do not constitute perjury.

-- The president did not deny that he had had other conversations with Lewinsky about the Jones case. The president expressed uncertainty about whether there were other occasions, The president testified that "I don't think we ever had more of a conversation than that about it" when describing the earlier exchange with Lewinsky over whether she might appear on the witness list. (Clinton deposition)

-- The Jones attorneys failed to ask appropriate follow-up questions such as "were there any other conversations concerning the possibility that Lewinsky would testify in the Jones case?"

-- Lewinsky has only testified about one other discussion with the president about the possibility that she "might" be asked to testify. Lewinsky claims that the president told her during a December 17 phone call that she had appeared on the Jones witness list. Subsequent conversations between the president and Lewinsky about the receipt of her subpoena two days later would not have been responsive to the question posed by the Jones attorneys because the "possibility that she might be asked to testify" had become a reality by that point.

-- Even if Lewinsky's testimony is fully credited, the president's failure to recall that they discussed the possibility that she would be asked to testify in the Jones case during their December 17 conversation was an understandable memory lapse. That call was made at 2 a.m. for the primary purpose of informing Lewinsky about the death of Betty Currie's brother.

Allegation that the president testified falsely when asked whether Lewinsky had told him she had been subpoenaed:

-- Generally, any of the president's testimony related to Lewinsky was immaterial to the "core issues" in the underlying Jones case.

-- The president's ambiguous statement -- "I don't know if she had been" -- concerned a topic about which he was not even being asked -- his state of knowledge concerning the Lewinsky's subpoena during his last meeting with her. Instead, the Jones attorneys had asked only whether Lewinsky herself had told the president about her subpoena during their last meeting, to which the president responded truthfully (she did not). It is hard to argue that a statement is material to the underlying proceeding when the Jones lawyers did not even ask for the information.

--The president admitted that he knew that Lewinsky had been subpoenaed at another point in the deposition. (Clinton 1/17/98 deposition)

-- It is not clear that the president is referring to the Dec. 28 meeting when he testifies about his state of knowledge concerning whether she had received a subpoena. In response to the preceding question about the last time he met with Lewinsky, the president describes a brief visit by Lewinsky to Currie "probably sometime before Christmas" or "sometime in December" during which he "stuck his head out" of the Oval Office and said hello. The president's recollection was not specific about when this meeting occurred. (Clinton 1/17/98 deposition) When the Jones lawyers asked about whether the president knew Lewinsky had been subpoenaed at this meeting, it is completely unclear whether the president is referring to the Dec. 28 meeting or an earlier meeting that preceded her receipt of the subpoena.

-- The president does not recall when he was first informed of the fact that Lewinsky had received a subpoena, nor does he recall any specific discussion of the subpoena. (Clinton 8/17/98 grand jury)

Allegation that the president testified falsely when asked who had informed him that Lewinsky had received a subpoena in the Jones case:

-- President truthfully identified Lindsey as "first" person who told him that Lewinsky had been subpoenaed and Jones attorneys failed to ask the obvious follow-up question: Who else? (Clinton 1/17/98 deposition)

-- The OIC also argues that the president's incomplete answer was motivated by his reluctance to mention Jordan, who continues to be investigated by the independent counsel for alleged obstruction of justice relating to Webster Hubbell. (Starr referral) This makes no sense because the president truthfully identified Bruce Lindsey, who has been unfairly investigated by the independent counsel for the same type of activity, as one of the individuals who told him that Lewinsky had been subpoenaed.

Allegation that the president testified falsely about whether anyone had reported to him about a conversation with Lewinsky concerning the Jones case in the two weeks prior to the deposition:

-- Jordan did not tell the president he had a conversation with Lewinsky. Jordan made a phone call to the president on Jan. 7 informing him that the Lewinsky affidavit had been signed (Starr referral), but Jordan did not speak with the president about his discussion with Lewinsky on that day. (Starr referral)

-- The information conveyed by Jordan to the president did not imply that he had talked to Lewinsky that day. (Jordan 5/5/98 grand jury) (Jordan sometimes relayed information to president concerning Lewinsky that he learned from Carter).

Allegation that the president testified falsely when he said he asked whether he had heard that Jordan and Lewinsky had met to discuss the Jones case:

-- The president was asked only about his knowledge of meetings between Jordan and Lewinsky concerning the Jones case, not "whether Mr. Jordan had talked to Ms. Lewinsky about her involvement in the Jones case," as the referral misleadingly suggests. (Starr referral)

-- The president recounted his belief that Lewinsky and Jordan had met to discuss the job search -- about which the president readily acknowledged an awareness.

-- President's failure to recall that Jordan told him of meeting with Lewinsky concerning Jones case, rather than job search, was not intentionally false. The president's belief that the meeting between Jordan and Lewinsky only involved job search was reasonable because the job search was a major part of the contacts between Lewinsky and Jordan.

The president's alleged obstruction of justice by encouraging Lewinsky to file a false affidavit:

-- Lewinsky acknowledges that choice to file the affidavit that she did was her choice. (Lewinsky body wire tape)

-- "Neither the president nor Mr. Jordan (or anyone on their behalf) asked or encouraged Ms. Lewinsky to lie. Ms. Lewinsky was comfortable signing the affidavit with regard to the "sexual relationship" because she could justify to herself that she and the president did not have sexual intercourse." (Lewinsky 2/l/98 proffer)

-- Lewinsky did not believe that president's suggestion of an affidavit meant that she was to file an untruthful affidavit. (Lewinsky 2/l/98 proffer)

--The president never suggested Lewinsky file a false affidavit. (Lewinsky 8/6/98 grand jury).

-- Lewinsky testified that she was never asked to lie. "Neither the president nor Mr. Jordan or anyone on their behalf asked or encouraged Lewinsky to lie." (Lewinsky proffer)

-- Lewinsky was strongly motivated on her own to file false affidavit. Lewinsky testified that she probably would have strongly resisted any affirmative suggestion from the president that they both disclose their relationship. (Lewinsky 8/6/98 grand jury)

-- Lewinsky tells Tripp during one of their tape-recorded conversations that the president does not know that Lewinsky will lie for him. (Tripp tape 6, 12/22/97)

-- President and Lewinsky talked about a truthful affidavit to prevent testimony, not a false affidavit. (Clinton 8/17/98 grand jury)

-- Lewinsky's lawyer, Frank Carter, independently proposed that the appropriate course of action would be to file an affidavit with the court.

-- During their 1/5 phone conversation, president and Lewinsky did not discuss the substantive aspects of her affidavit, as you would expect if the president was attempting to encourage a false affidavit, but only a single point raised by her attorney. (Lewinsky 8/6/98 grand jury)

The president's alleged attempt to hide gifts that he gave to Ms. Lewinsky:

-- Betty Currie says that she did not call Ms. Lewinsky to retrieve the gifts, but that Ms. Lewinsky called her and asked her to pick them up. (Currie 1/24/98)

-- The president also testified that he did not ask Ms. Currie to pick up the gifts. (Clinton 8/17/98 grand jury)

-- The president testified that he told Ms. Lewinsky she would have to turn over to the Jones lawyers whatever gifts she had. (Clinton 8/17/98 grand jury)

-- When Ms. Lewinsky suggested to the president that she should put the gifts outside her home, he either did not respond or was noncommittal. (Lewinsky 8/6/98 grand jury); (Lewinsky 8/20/98 grand jury); (Lewinsky 7/27/98); (Lewinsky 8/l/98 grand jury); (Lewinsky 8/24/98 grand jury)

-- The president testified that he was not concerned about the gifts because he gave gifts to many different people. (Clinton 8/17/98 grand jury)

-- The president gave additional gifts to Ms. Lewinsky during their meeting on Dec. 28, 1997, proving that he was not concerned about whether she would turn gifts over the Jones lawyers. (Starr referral)

The president's alleged obstruction of justice by assisting Lewinsky in finding a job in New York:

-- Lewinsky had the idea to move to New York months before the Jones testimony was an issue.

-- On 10/9/97, Tripp told Lewinsky that Tripp's friend at NSC, Kate, heard rumors about Lewinsky. Kate said that Lewinsky would never get back to the White House with a blue pass and said to Tripp that Lewinsky should leave D.C. (Lewinsky 2/1/98 proffer) Tripp pushes Lewinsky to leave D.C., necessitating Lewinsky's job search.

-- Lewinsky had previously considered moving to New York, but Tripp's call finalized the idea. (Lewinsky 7/31/98)

-- After becoming increasingly frustrated at not getting a job at the White House, Lewinsky wrote a letter to the president (dated 7/3/97) in which she raises the possibility of getting a job in New York.

-- Tripp and Lewinsky, not the president, sought Vernon Jordan's involvement in the job search.

-- Linda Tripp suggested to Lewinsky that the president should ask Vernon Jordan to help her find a job. (Lewinsky 7/27/98)

-- Lewinsky raised the idea with the president of involving Jordan in her search for a job in New York. (Lewinsky 8/6/98 grand jury; Lewinsky 8/20/98 grand jury).

-- On her own, Currie decided to approach her friend, Vernon Jordan, to ask him to assist Lewinsky. The president never told Currie to call Jordan to help Lewinsky find a job. (Currie 5/6/98 grand jury)

-- Lewinsky lied to Tripp, saying that she had told Vernon Jordan "No job, no affidavit," when in fact she had not said that and there was no such understanding.

-- "No one ever asked me to lie and I was never promised a job for my silence." (Lewinsky 8/20/98 grand jury; Lewinsky handwritten proffer)

-- On 1/9/98, Tripp made Lewinsky promise not to sign the affidavit without a job offer in hand. Lewinsky promised so that Tripp would do what Lewinsky wanted, but Lewinsky did not say that to Jordan. (Lewinsky 8/6/98 grand jury)

-- Lewinsky never said to Currie that she wouldn't sign an affidavit until she got a job. (Currie 7/22/98 grand jury)

-- Neither the president nor Vernon Jordan pressed the job the way they could have had it been essential to keep Lewinsky quiet.

-- The president didn't do anything to get Lewinsky back to the White House after the election. (He could have.) (Currie 5/6/98 grand jury)

-- The president has connections in New York that he never used to get Lewinsky a job there. (Currie 5/6/98 grand jury; Currie 5/14/98 grand jury)

--The president said that he didn't order Lewinsky to be hired at the White House. "I could have done so. I wouldn't do it. She tried for months to get in. She was angry." (President's grand jury testimony)

-- The president said "I was not trying to buy her (Lewinsky's) silence or get Vernon Jordan to buy her silence."' (President's grand jury testimony)

The president's alleged attempt to influence the testimony of Betty Currie:

-- Betty Currie that the president did not pressure her about what to say. (Currie 7/22/98 grand jury)

-- The president testified that he wasn't trying to have Ms. Currie say something that was false. (Clinton 8/17/98 grand jury)

-- The testimony showing that the president was not concerned about Ms. Currie's testimony in any proceeding, but about press reaction to a leak of his deposition in the Jones case. (Clinton 8/17/98 grand jury)

-- When the OIC's involvement in the Jones case became publicly known, the president told Ms. Currie "that she might have to be called as a witness, that she should just go in there and tell the truth, tell what she knew, and be perfectly truthful." (Clinton 8/17/98 grand jury)

--The president was concerned about how much Ms. Currie knew about his relationship with Ms. Lewinsky. (Clinton 8/17/98 grand jury)

-- The president's statements to his aides involved his denial of a private, sexual relationship. This is not comparable to enlisting aides to misrepresent the progress and success of our troops during the Vietnam War, or misrepresenting the United States' efforts to divert financial assistance from Iran to help the Contras in Nicaragua, or misrepresenting involvement in the Watergate burglaries.

-- The independent counsel does not allege, because there are no facts from which to do so, that the president denied that he had an inappropriate relationship with Lewinsky for the corrupt purpose of influencing their grand jury testimony.

-- The president's admission that some people he talked with would testify in the grand jury is not the same as an admission that he intended those people to lie. Indeed, the case cited by the OIC proves that very point. (See United States v. Bordallo 9th Cir. 1988) Criminal convictions require that the actor intend the person to lie. Not one of the individuals identified in the referral states that the president discussed, or even suggested, that they should testify in any particular way.

-- The privileges asserted by the president and his counsel in this investigation had legal merit. (In re Grand Jury Proceedings, 1998 U.S. Dist. ... D.D.C. May 27, 1998) ("this court finds that it must treat the communications of Lindsey and Blumenthal as presumptively privileged")

-- Reading the referral, one would never know that the court found an appropriate basis for the privilege. Similarly, one would never know that on appeal of a decision rejecting a claim of attorney-client privilege by Bruce Lindsey, the federal appeals court for the District of Columbia concluded that White House discussions about impeachment are presumptively protected by executive privilege. (In re: Bruce R. Lindsey 1998 U.S. App. ... D.C. Cir. July 27, 1998)

-- It is beyond dispute that the president was advised by counsel each step of the way. As every trial lawyer knows, a recognized defense to an allegation of wrongdoing is that the person whose conduct is at issue relied on the advice of counsel.

-- The president played no role in the litigation strategy adopted by the United States Secret Service, the Department of Treasury, and the Department of Justice which asserted the protective-function privilege to avoid giving testimony to the grand jury. None of these agencies or officials were directed by the president to assert any privilege.

-- Indeed, in the litigation concerning this issue, the OIC criticized the assertion of privilege by the Secret Service precisely because the president had not raised it himself. (See In re Grand Jury Proceedings ... D.D.C. May 22, 1998) (concluding that the protective function privilege was not properly asserted because the president did not invoke it.)

-- The OIC's claim that the president should be impeached based on his early refusals to appear before the grand jury before voluntarily agreeing to appear on Aug. 17, is totally insupportable. The president was a "target" of this investigation and Justice Department regulations recognize that targets should not ordinarily be subpoenaed before a grand jury. (United States Attorney's manual) Those regulations reflect settled Fifth Amendment rights against self-incrimination.

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