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15. The President did not abuse his power by permitting White House staff to comment on the investigation. The President has acknowledged misleading his family, staff and the country about the nature of his relationship with Ms. Lewinsky, and he has apologized and asked for forgiveness. However, this personal failing does not constitute a criminal abuse of power. If allowing aides to repeat misleading statements is a crime, then any number of public officials are guilty of misusing their office for as long as they fail to admit wrong doing in response to any allegation about their activities.

16. The actions of White House attorneys were completely lawful. The White House Counsel attorneys provided the President and White House officials with informed, candid advice on issues raised during this investigation that affected the President's official duties. This was especially necessary given the fact that impeachment proceedings against the President were a possible result of the OIC's investigation from Day One. In fact, throughout the investigation, the OIC relied on the White House Counsel's office for assistance in gathering information and arranging interviews and grand jury appearances. The Counsel's office's actions were well known to the OIC throughout the investigation and no objection was ever voiced.

This means that the OIC report is left with nothing but the details of a private sexual relationship, told in graphic details with the intent to embarrass. Given the flimsy and unsubstantiated basis for the accusations, there is a complete lack of any credible evidence to initiate an impeachment inquiry concerning the President. And the principal purpose of this investigation, and the OIC's report, is to embarrass the President and titillate the public by producing a document that is little more than an unreliable, one-sided account of sexual behavior.

Where's Whitewater? The OIC's allegations reportedly include no suggestion of wrongdoing by the President in any of the areas which Mr. Starr spend four years investigating: Whitewater, the FBI files and the White House travel office. What began as an inquiry into a 24 year old land deal in Arkansas has ended as an inquest into brief, improper personal encounters between the President and Monica Lewinsky. Despite the exhaustive nature of the OIC's investigation into the Whitewater, FBI files and travel office matters, and a constant stream of suggestions of misconduct in the media over a period of years, to this day the OIC has never exonerated the President or the First Lady of wrongdoing.

PRELIMINARY MEMORANDUM CONCERNING

REFERRAL OF OFFICE OF INDEPENDENT COUNSEL

This document is intended to be a preliminary response to the Referral submitted by the Office of Independent Counsel to The Congress. Because we were denied the opportunity to review the content, nature or specifics of the allegations made against the President by the Office of Independent Counsel (OIC), we do not pretend to offer a point-by-point refutation of those allegations, or a comprehensive defense of the President.

We commend the House of Representatives for the extraordinary steps it has taken to safeguard the secrecy of the OIC's allegations. Unfortunately, its efforts were thwarted by unnamed sources familiar with the details of the OIC's allegations -- sources that could only come from the OIC itself -- who saw fit to leak elements of the allegations to the news media.

Based on these illegal leaks, as well as our knowledge of the President's testimony, we offer this document as a summary outline of his side of the case. We will provide you with a specific rebuttal as soon as we have had a chance to review the materials that the OIC has already transmitted to you.

The simple reality of this situation is that the House is being confronted with evidence of a man's efforts to keep an inappropriate relationship private. A personal failure that the President has acknowledged was wrong, for which he apologized, and for which he accepts complete responsibility. A personal failure for which the President has sought forgiveness from members of his family, members of the Cabinet, Members of Congress, and the American people. Such a personal failing does not, however, constitute "treason, bribery and high crimes and misdemeanors" that would justify the impeachment of the President of the United States.

The President himself has described his conduct as wrong. But no amount of gratuitous details about the President's relationship with Ms. Lewinsky, no matter how salacious, can alter the fact that:

1) The President did not commit perjury:

2) The President did not obstruct justice;

3) The President did not tamper with witnesses; and

4) The President did not abuse the power of his office.

Impeachment is a matter of incomparable gravity. Even to discuss it is to discuss overturning the electoral will of the people. For this reason, the Framers made clear, and scholars have long agreed, that the power should be exercised only in the event of such grave harms to the state as "serious assaults on the integrity of the processes of government," or "such crimes as would so stain a president as to make his continuance in office dangerous to public order." Charles L. Black, Impeachment: A Handbook 38-39 (1974). We do not believe the OIC can identify any conduct remotely approaching this standard. Instead, from press reports, if true, it appears that the OIC has dangerously overreached to describe in the most dramatic of terms conduct that not only is not criminal but is actually proper and lawful.

The President has confessed to indiscretions with Ms. Lewinsky and accepted responsibility and blame. The allegations concerning obstruction, intimidation, perjury and subornation of perjury that we anticipate from the OIC are extravagant attempts to transform a case involving inappropriate personal behavior into one of public misconduct justifying reversal of the judgment of the electorate of this country.

I. STANDARDS FOR IMPEACHMENT

The Constitution provides that the President shall be removed from office only upon "Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." U.S. Const. Art. II, ¤ 4. Of course, there is no suggestion of treason or bribery present here. Therefore, the question confronting the House of Representatives is whether the President has committed a "high Crime[] or Misdemeanor." The House has an obligation to consider the evidence in view of that very high Constitutional threshold. It should pursue the impeachment process only if there is evidence implicating that high standard.

The House must approach the question with solemnity and with care, for history teaches that an "impeachable offense" is no ordinary kind of wrongdoing. The Framers included specific provisions for impeachment in the Constitution itself because they understood that the most severe political remedy was necessary to remedy the most serious forms of public wrongdoing. Impeachment is a basic constitutional safeguard, designed both to correct harms to the system of government itself and to protect the people from ongoing malfeasance. Nothing less than the gravest executive wrongdoing can justify impeachment. The Constitution leaves lesser wrongs to the political process and to public opinion.

Presidential impeachment is thus a matter of incomparable gravity. As Professor Charles Black stated,

[t]he presidency is a prime symbol of our national unity. The election of the president (with his alternate, the vice-president) is the only political act that we perform together as a nation; voting in the presidential election is certainly the political choice most significant to the American people, and the most closely attended to by them. No matter, then, can be of higher political importance than our considering whether, in any given instance, this act of choice is to be undone, and the chosen president dismissed from office in disgrace. Everyone must shrink from this most drastic of measures.

Impeachment: A Handbook 1 (1974). Presidential impeachment is thus an "awful step." Ibid. The Framers knew this. For that reason they framed the constitutional procedure with precision and specified grounds for impeachment with great care.

The Framers deliberately chose to make "high Crimes and Misdemeanors" the standard of an impeachable offense. They were familiar with English common law and parliamentary history and they borrowed the expression directly from the English law of impeachment. They did so knowing that the expression was a term of art and they made the choice after deliberate rejection of alternative formulations of the impeachment standard.

The Framers intended the standard to be a high one. They rejected a proposal that the President be impeachable for "maladministration," for, as James Madison pointed out, such a standard would "be equivalent to a tenure during the pleasure of the Senate." The Framers plainly did not intend to permit Congress to debilitate the executive by authorizing impeachment for something short of the most serious harm to the state. In George Mason's apt phrase, impeachment was thought necessary to remedy "[a]ttempts to subvert the Constitution."

In English practice, the term "high crimes and misdemeanors" had been applied to various offenses, the common elements of which were their severity and the fact that the wrongdoing was directed against the state. The English cases included misappropriation of public funds, interfering in elections, accepting bribes, neglect of duty, and various forms of corruption. Ibid. These offenses all affected the discharge of public duties by public officials. In short, under the English practice, "the critical element of injury in an impeachable offense was injury to the state."

That is why, at the time of the ratification debates, Alexander Hamilton described impeachment as a "method of NATIONAL INQUEST into the conduct of public men." The Federalist No. 65 at 331 (Gary Wills ed. 1982). This "inquest" is perhaps the gravest process known to our Constitution. No act touches more fundamental questions of constitutional government than does the process of Presidential impeachment. No act more directly affects the public interest. No act presents the potential for greater injustice -- injustice both to the Chief Executive and to the people who elected him.

For these reasons, the impeachment process must be painstaking and deliberate. It must focus only on such harms as the Framers intended to be redressed by the incomparably severe act of impeachment. And most importantly, it must be understood for what it is -- a process of inquiry. That process is itself the exercise of a public trust "of delicacy and magnitude." Accordingly, if the process is begun it is only just that the members engaged in this solemn task withhold judgment until the process is complete and all the facts are known. Our Constitution's most basic values and the requirements of simple justice together demand no less.

The President is sole head of one branch of our government -- indeed, in a certain sense the President is the Executive Branch. The Constitution provides that "[t]he executive Power shall be vested in a President of the United States of America." U.S. Const. art. II, ¤ 1. The President is the only government official to have been popularly elected by all the American people. When the people elect a President, the popular will is expressed in its most important, most visible and most unmistakable form. The impeachment process, by definition, threatens to undo the popular will. Impeachment presents the prospect of reversing the electoral mandate that brought the executive to office. Conviction upon articles of impeachment actually does so.

For these reasons, impeachment is limited to only certain forms of potential wrongdoing and it is intended to redress only certain kinds of harms. Again, in Hamilton's words:

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