HOUSE_OVERSIGHT_017361.jpg

4.2.12
WC: 191694

presence of his own lawyers. In reaching this agreement, the President withdrew his constitutional
challenge to the power of a grand jury to compel his testimony. This was a serious constitutional
issue, especially since Starr had given Lewinsky total immunity from prosecution. This left
Clinton as the primary target of the grand jury. But there is grave doubt whether a sitting
President can be indicted or prosecuted. If he cannot, then there is even graver doubt whether it is
proper to use a grand jury to gather information for an impeachment. In my view, the President
could have leveled a serious challenge, on this and other grounds, against the grand jury
subpoena. Such a challenge would have taken at least a year to resolve. In the meantime, he
would not have had to testify.

But the President decided to waive this challenge and to testify "voluntarily." What I don’t know
is whether at the time the President made the decision to testify he knew of the existence of the
semen-stained dress. There had, of course, been rumors of such a dress over the prior months, but
they had been denied by Lewinsky’s lawyer. The news of the uncleaned dress with a telltale stain
became public only after the President made his decision to testify. It is fair to ask whether the
President’s decision would have been different if he knew about the existence of the dress. It is
also fair to ask whether the President’s testimony in front of the grand jury would have been
different had there been no dress. We don’t know.

What we do know is that the President’s decision to testify before the Starr grand jury gave the
prosecutor an opportunity to trap the President once again into committing perjury – this time not
in a live deposition in a dismissed case where the testimony was only marginally relevant, but in a
grand jury proceeding where the testimony was central.

It also gave the prosecutor an unprecedented opportunity to videotape the interrogation so that it
could be seen by Congress and the public.

Again short term considerations prevailed. First, the President’s political advisors urged him to
avoid that day’s image of the President walking into the courthouse – the so-called "perp walk."
The White House agreed therefore, to the making of a videotape which would later show the
President being evasive and perhaps even dishonest. Although the President’s videotaped
testimony was not as bad as many thought it would be – at least in the short run -- it was more
damaging in the long run than a walk to the courtroom might have been.

Ultimately, after the disclosure of the semen-stained dress made it undeniable that there had been
sexual activity between them, President Clinton had to appear on television and acknowledge that
he had behaved "inappropriately" with Monica Lewinsky. It was a low point both in his
presidency and in his personal life.

The day after President Clinton publicly acknowledged that he had behaved "inappropriately", he
flew to the Vineyard. The next day, we were both at a party. The President gathered a small
group—including several lawyers—around him and began to discuss the case. He said that
following the unanimous Supreme Court decision refusing to postpone the lawsuit brought
against him by Paula Jones, he had no choice but to submit to a deposition about his sex life,
because Jones refused to settle the case. I told him he did have an alternative: he could have
ended the law suit by simply defaulting and paying Paula Jones’ damages. If he paid the damages

274

HOUSE_OVERSIGHT_017361