On May 31st, 1998, the spokesman for Independent Counsel Kenneth W. Starr declared that the Office's Monica Lewinsky investigation "is not about sex. This case is about perjury, subornation of perjury, witness tampering, obstruction of justice. That is what this case is about". Now that the 450-page Referral to the United States House of Representatives is public, it is plain that "sex" is precisely what this 4 1/2-year investigation has boiled down to. The Referral is so loaded with irrelevant and unnecessary graphic and salacious allegations that only one conclusion is possible: its principal purpose is to damage the President. The President has acknowledged and apologised for an inappropriate sexual relationship with Ms Lewinsky, so there is no need to describe that relationship in ugly detail. No one denies that the relationship was wrong or that the President was responsible. The Referral's pious defence of its pornographic specificity is that, in the Independent Counsel's view, "the details are crucial to an informed evaluation of the testimony, the credibility of witnesses, and the reliability of other evidence. Many of the details reveal highly personal information; many are sexually explicit. This is unfortunate, but it is essential".
This statement is patently false. Any fair reader of the Referral will easily discern that many of the lurid allegations, which need not be recounted here, have no justification at all, even in terms of any OIC (Office of the Independent Counsel) legal theory. They plainly do not relate, even arguably, to activities which may be within the definition of "sexual relations" in the President's Jones deposition, which is the excuse advanced by the OIC. They are simply part of a hit-and-run smear campaign, and their inclusion says volumes about the OIC's tactics and objectives. Review of a prosecutor's case necessarily starts with an analysis of the charges, and that is what we offer here. This is necessarily a very preliminary response, offered on the basis of less than a day's analysis and without any access to the factual materials cited in the Referral.
Spectacularly absent from the Referral is any discussion of contradictory or exculpatory evidence or any evidence that would cast doubt on the credibility of the testimony the OIC cites (but does not explicitly quote). This is a failure of fundamental fairness which is highly prejudicial to the President and it is reason alone to withhold judgment on the Referral's allegations until all the prosecutors' evidence can be scrutinised - and then challenged, as necessary, by evidence from the President.
The real critique can occur only with access to the materials on which the prosecutors have ostensibly relied. Only at that time can contradictory evidence be identified and the context and consistency (or lack thereof) of the cited evidence be ascertained. Since we have not been given access to the transcripts and other materials compiled by the OIC, our inquiry is therefore necessarily limited. But even with this limited access, our preliminary review reaffirms how little this highly intrusive and disruptive investigation has in fact yielded.
In our Preliminary Memorandum, [which was issued on Friday shortly before the Starr Report was published] at pages 3-12, we set forth at some length the various ways in which impeachable "High Crimes and Misdemeanours" have been defined. Nothing in the Referral even approximates such conduct. In the English practice from which the Framers borrowed the phrase, "High Crimes and Misdemeanours" denoted political offences, the critical element of which was injury to the state.
Impeachment was intended to redress public offences committed by public officials in violation of the public trust and duties. Because presidential impeachment invalidates the will of the American people, it was designed to be justified for the gravest wrongs - offences against the Constitution itself. In short, only "serious assaults on the integrity of the processes of government," and "such crimes as would so stain a president as to make his continuance in office dangerous to the public order," constitute impeachable offences. The 11 supposed "grounds for impeachment" set forth in the section of the Referral called "Acts That May Constitute Grounds for an Impeachment" fall far short of that high standard, and their very allegation demeans the constitutional process.
President Clinton's legal team issued a lengthy rebuttal at the weekend of the Starr report into his behaviour with Monica Lewinsky. The report concluded that there were 11 impeachable offences for which he could be held accountable. The President's lawyers disagree, arguing there are no grounds for impeachment.
The matter is now in the hands of the House Judiciary Committee, which will examine the report and, based on a simple majority vote of the 435 members of the House of Representatives (the lower house of Congress) decide whether to lay charges of impeachment against the President.
If they do, the 100 members of the Senate, chaired by the Chief Justice, will then try the President - a procedure that has not happened this century.
What follows on this page is an edited version of Mr Clinton's lawyers' weekend rebuttal of Mr Starr.
The man leading the legal team now fighting to keep the Clinton presidency alive is a Quaker who grew up in Indiana. David Kendall, who is known for his reserve, negotiated the agreement for Mr Clinton to testify by videotape before Mr Starr's grand jury hearings into the Lewinsky affair. His efforts to obtain a copy of the Starr report before it was made public, so that Mr Clinton could have his response to hand, were rejected by Mr Starr.
Mr Kendall is the man President Clinton will rely on legally to defeat any efforts by the House Judiciary Committee to have impeachment charges forwarded to the Senate for a full trial of the President. A quintessential Washington Establishment lawyer, Mr Kendall has another high-profile client besides the President - the National Enquirer, the "supermarket" tabloid specialising in sensational articles about the private lives of celebrities.
David Kendall, the President's personal attorney.