Jerome Zeifman, Drafting Counsel for Nixon Impeachment, Drafts Clinton Impeachment
Ziefman Memo to Rep. Barr on Clinton Impeachment
MEMORANDUM TO : Bob Barr, Member
FROM : Jerome M. Zeifman
DATE : November 18, 1998
SUBJECT : Memorandum of Law and Facts on Bribery as an Impeachable Offense
As described in chapter 18 of my book, "Without Honor: The Impeachment of President Nixon and the Crimes of Camelot," in the summer of 1974 the House Judiciary Committee reported out three articles of impeachment. As characterized by then-Committee member William Hungate, the drafting of the articles was "[a] distillation of the thought of many members from many areas, and of differing philosophies."
As I also described in chapter 18, the actual drafting of the articles was done by two drafting teams of the members themselves. One team was comprised of Democrats, headed by Representative Jack Brooks of Texas and Don Edwards of California. The other was referred to in the press as the "Swing Seven" and was comprised of three conservative Democrats from the south, and three moderate Republicans. Although in my book I gave the members of both groups credit themselves as the draftsmen, Tom Mooney (your present General Counsel) was the drafting counsel for the Swing Seven, and I the drafting counsel for the Democrats.
Tracking the language and format of the Nixon articles
as closely as possible, I am submitting for your consideration
the text of my recommendations for a proposed Article of
Impeachment against President Clinton for bribery, which
In his conduct of the office of President of the United States, William J. Clinton has given or received bribes with respect to one or more of the following:
(1) Approving, condoning, or acquiescing in the surreptitious payment of bribes for the purpose of obtaining the silence or influencing the testimony of Webster Hubbell as a witness or potential witness in criminal proceedings;
(2) Approving, condoning, or acquiescing in the use of political influence by Vernon Jordan in obtaining employment for the purpose of obtaining the silence or influencing the testimony of Monica Lewinsky as a witness or potential witness in civil or criminal proceedings; and
(3) Approving, condoning or acquiescence in the receipt of bribes in connection with the issuance of an executive order which had the effect of giving Indonesia a monopoly on the sale of certain types of coal.
The crime of bribery consists of the voluntary giving or receipt of benefits in corrupt attempts to influence the actions of public officials or testimony of witnesses. The crime is completed on the giving, solicitation or receipt of the bribe itself, and there need be no delivery of the "quid pro quo" in order to convict.
Under section 201 it is not necessary to show the official or witness who gave, solicited or received the bribe possessed criminal intent. Under a series of Supreme Court decisions, to obtain a conviction, it is only necessary to show the official or his intermediary or the witness gave, solicited, received or agreed to receive, something of value with knowledge that the donor was compensating him or her for an official act or for testimony (or, non-testimony) as a witness in a judicial or congressional proceeding.
More recent decisions of the Supreme Court have imposed even stricter prohibitions on public officials than those in existence at the time of the Nixon impeachment inquiry. In its 1992 opinion, Evans v. United States, the Court interpreted section 1951 of the criminal code (the Hobbs act), holding:
"Passive acceptance of a benefit by a public
official is sufficient to form the basis of a Hobbs Act
violation if the official knows that he is being offered the
payment in exchange for a specific requested exercise of his
official power. The official need not take any specific
action to induce the offering of the benefit." [HE483]
Bribery Involving Whitewater and Webster Hubbell
As was later learned by congressional investigators, to help the Clintons respond to inquiries from the press and charges from other candidates, Vincent Foster, Mrs. Clinton's then-law partner, who was soon to become Bernard Nussbaum's Deputy White House Counsel, assembled all the information he could on Whitewater. Webster Hubbell, who was then also Mrs. Clinton's law partner and Bill Clinton's closest friend, secretly removed the firm's only copies of files relating to Madison Guaranty as well other Rose Law Firm clients for whom Mrs. Clinton performed legal services.
The files, which were legally the property of the
clients, were removed without the firm's consent and were later
stored in Hubbell's Washington home after he was appointed
Associate Attorney General. In addition, Hubbell and
Foster were able to obtain computer print-outs of the Rose Law
Firm's billing records relating to Hillary Clinton's
representation of Madison Guaranty.
Among Hillary Clinton's billing records that "disappeared" were those relating to another questionable land deal and loan exchange scheme of McDougal's, known as Castle Grande. The project benefitted Webster Hubbell's father-in-law, Seth Ward. In 1988, bank regulators had charged Castle Grande was a "sham" that cost federal taxpayers $4 million. [HE2 p40, 41]
In 1992 and 1993 Hillary Clinton had denied she had done any legal work for McDougal or Madison. In April 1994 it was learned some of the Rose Law Firm Whitewater-related documents had been shredded. When asked by reporters what she knew about the shredding, Mrs. Clinton said: "Nothing...[It] didn't happen, and I know nothing about any other such stories...Absolutely not."
In May 1995, Mrs. Clinton provided federal investigators written responses under oath. She denied any knowledge of Castle Grande; stating she had "no recollection" of doing legal work for Seth Ward. [HE2 p40, 41]
In January 1996, the First Lady admitted in written answers to federal banking officials that in 1988 -- the year in which regulators first began investigating Castle Grande -- she had ordered the shredding of three Castle Grande files, stating: "It appears that I cooperated with this effort [to dispose of the files]."
As for the files that had not been shredded, Hillary
Clinton was eventually to state through her attorney she
"may have" reviewed them during the 1992 campaign, but
denied any knowledge of their whereabouts. Hubbell was
later to testify he last saw the records during the 1992
presidential campaign in the possession of Vincent Foster.
Congressional investigators learned that after Nussbaum had initially searched Foster's brief case he had declared it empty. Later, one of Nussbaum's aides purportedly searched the brief case and found torn-up pieces of a note by Foster expressing bitterness about his life in Washington. When Nussbaum met with investigators and produced an envelope containing the pieces of the note, the pieces fell out of the envelope on to the floor.
Nussbaum and the White House soon clashed with Deputy Attorney General Heymann, who later quietly resigned to return to a teaching position at the Harvard Law School. Later, in sworn testimony to the Senate Whitewater Committee Heymman said he had objected to Nussbaum's conduct and asked him,"Bernie are you hiding something?" Heymann also testified that, because of the obstruction of the investigation, he warned the Clinton White House of a "major disaster brewing."
Heymann had argued Nussbaum "should not decide ... alone" which papers in Foster's office could be reviewed by authorities, and that "White House lawyers should not sit in on interviews of witnesses." Explaining that "the player with significant stakes in the process cannot be a referee," Heymann testified he was "very angry and very adamant" in telling Nussbaum that career Justice Department officials should review the documents.
As congressional investigators continued to probe events related to Foster's death, they learned that in 1993 the Clintons were aware of a pending criminal investigation of McDougal's Madison Bank by the Resolution Trust Corporation, a federal regulatory agency that named Arkansas Governor Jim Guy Tucker as a target and the Clintons as witnesses to, and beneficiaries of, illegal actions. [3/roadmap]
Foster was engaged in preparing responses to expected Whitewater questions. He was also given the responsibility for the preparation of the Clintons' tax returns for 1992 to reflect properly the sale of their shares in Whitewater.
Congressional investigators were also able to obtain evidence that Nussbaum was not alone in searching Foster's unsealed office on the night of his death. Others included President Clinton's aide Patsy Thomasson, and Margaret Williams, Mrs. Clinton's Chief of Staff. Although each denied under oath they had removed any documents, Ms. Williams testimony was contradicted by a Secret Service agent who testified he saw her leave Foster's office on the night of his death with a stack of thick file folders.
Five days after Foster's death Nussbaum, without preparing an inventory, turned over a number of files to Ms. Williams who transferred them to the White House residence. In the ensuing effort to obtain the missing files, a number of subpoenas were issued by congressional committees and independent counsel Kenneth Starr. Under subpoena to produce her billing records relating to the Madison Bank, Mrs. Clinton stated through her personal counsel she "may have" seen them during the 1992 campaign but did not know their present whereabouts.
In August 1995 the missing billing records were eventually found by presidential aide Carolyn Huber, in the "book room" next to Mrs. Clinton's office in the White House residence. Mrs. Huber was later to testify she did not realize what they were until she looked at them again five months later in sorting out several boxes of documents in her office. It was not until January 1996 -- two years after they were first subpoenaed -- that the billing records were turned over by personal counsel for the President and Mrs. Clinton. Mrs. Clinton then denied knowing how the records got to the book room, where access was limited mostly to the Clintons and several selected friends.
The billing records contain handwritten notes and questions to Mrs. Clinton from both Foster and Hubbell. They also contradict public statements and sworn testimony by Mrs. Clinton that she had done little or no legal work for Madison and had no knowledge of Castle Grande. The records show she billed Madison for at least 60 hours of legal services over 15 months, had numerous meeting with Hubbell's father-in-law, Seth Ward, and talked with Ward on the phone at least 14 times.
The complicity of Hillary Clinton, Nussbaum, and other aides to the President in the obstruction of the investigations of Whitewater by Congress and the independent counsel now has a sad irony. Twenty years earlier on the House Judiciary Committee's impeachment inquiry staff, both Hillary Rodham and Bernard Nussbaum were aware the role of Nixon's White House counsel, John Dean, in the cover-up of Watergate was a basis for charging Nixon with an impeachable offense.
In 1972, following the arrest of Watergate burglar Howard Hunt and others, John Dean alone had personally examined the contents of Hunt's White House safe, and had sat in on the interrogation of witnesses by the Justice Department. For his acts, Dean was charged with the felony of obstructing justice and served a prison term. In 1993, as Dean's successor, Nussbaum similarly interposed himself between the Justice Department's investigation of the files in the White House office of Vincent Foster.
At the time of Watergate, Nussbaum and Hillary Rodham were aware that for his complicity in Dean's acts and those of other White House aides, President Nixon was charged with an impeachable offense by the House Judiciary Committee and named as an "unindicted co-conspirator" by Watergate special prosecutor Leon Jaworski. They were also aware of the legal principles of complicity relied on both by the Judiciary Committee and by Watergate prosecutor Jaworski. Under those principles, if the President establishes a policy of obstructing investigations, he becomes accountable for the acts of his aides in the pursuit of that policy.
Under the same principles, President Clinton now warrants impeachment for bribery; as well as for the cover-up of Whitewater by Bernard Nussbaum, Hillary Clinton, other White House aides, and the President's best friend, Webster Hubbell. As concluded in the 650-page final report of the Senate Whitewater Committee released on June 18, 1996:
"By the time of Vincent Foster's death in July 1993, the Clintons had established a pattern of concealing their involvement with Whitewater and the McDougals' Madison Guaranty S&L. The actions of senior White House officials and other close Clinton associates in the days and weeks following Mr. Foster's death ... were but part of a pattern that began in 1988 of concealing, controlling and even destroying damaging information concerning the Whitewater real estate investment and the Clintons' ties to James and Susan McDougal and the Madison Savings and Loan. Indeed, at the time of Mr. Foster's death, the Clintons and their associates were aware that the Clintons' involvement with Whitewater land deal, the McDougals, and the Madison S&L might subject them to civil liability and even criminal investigation."
In 1997, further evidence came to light that was also reminiscent of the Nixon impeachment proceedings. Based in part on the arrangement by White House aides of payments of "hush money" to Howard Hunt and other Watergate burglars, the first article of impeachment adopted by the Judiciary Committee at the time of Watergate, charged President Nixon with nine offenses, two of which included:
"Approving, condoning, and acquiescing in the surreptitious payment of substantial sums of money for the purpose of obtaining the silence or influencing the testimony of witnesses, potential witnesses, or individuals who participated in...illegal activities; and
Making false or misleading public statements for the purpose of deceiving the people of the United States into believing that...with respect to allegations of misconduct on the part of personnel of the executive branch of the United States and personnel of the Committee for the Re-election of the President and that there was no involvement of such personnel in such misconduct."
Similarly, there is now compelling evidence that, after Webster Hubbell resigned as Associate Attorney General to face criminal charges of fraud, President Clinton also acted through White House aides to arrange payments of "hush money" to Mr. Hubbell. There is likewise persuasive evidence that to deceive the public, President Clinton has made false statements.
Early in 1994, then-Whitewater Independent Counsel Robert Fiske discovered Hubbell had overbilled his clients at the Rose law firm $482,410, and that he owed $143,437 in unpaid federal income taxes. [he2 p24] Initially, it was reported that in the nine months between his resignation and his guilty plea, Hubbell received payments of $400,000, of which $100,000 came from the Riadys. Later, House investigators found evidence that Hubbell received $1 million or more, of which $300,000 came from the Riadys.
When the first reports of the Riady payments to Hubbell appeared in the press in January 1997, President Clinton was asked at a White House news conference whether he found the Riady payment unusual or suspicious, and what steps he had taken to find out whether it had been hush money. His response was:
"I can't imagine who could have ever arranged to
do something improper like that and no one around here knew
about it. We did not know anything about it, and I can
tell you categorically that did not happen. I knew nothing
about it. None of us did before it happened. I
didn't personally know anything about it until I read about it
in the press." [HE2 p26, 27; 3/roadmap]
"Let me remind you of the critical fact. At
the time that it was done, no one had any idea about whether
any -- what the nature of the allegations were
against Mr. Hubbell or whether they were true. Everybody thought
there was some sort of billing dispute with his law firm. And
that's all anybody knew about it. So no, I do not think they did
In the summer of 1994, Hubbell made at least two trips
to Camp David to visit the Clintons and had a golf match with
the President and Texas oil man Truman Arnold, who made a
payment to Hubbell during that period. He also met
frequently with Gerald Stern, who was then in charge of the
division of the Justice Department responsible for prosecuting
financial institution fraud, and who later told the Washington
Post his meetings with Hubbell were "strictly social."
"It [is now] impossible for me to believe it happened the way President Clinton and his wife said it had. I [have] rejected, for myself, the story... that neither they nor anybody else at the White House knew that when their good friend Webster L. Hubbell resigned as Associate Attorney General in 1994 he was facing the likelihood of criminal accusations that could land him in jail. They did.
"If the President did know, then after the resignation he opened himself to possible charges of obstructing justice by approving White House job-hunting for Mr. Hubbell. It would not take a particularly suspicious mind -- let alone a prosecutor's -- to see high-paying jobs as hush money to keep a defendant silent. Why would he take that risk?
"In [this] paper Jeff Gerth and Stephen Labaton of the New York Times Washington bureau reported that before Mr. Hubbell resigned, David E. Kendall, the personal lawyer of the Clintons, and James B. Blair, one of their closest Arkansas confidants, received certain information from the Rose Law Firm in Little Rock....The information was that the firm had "pretty strong proof of wrongdoing" by Mr. Hubbell while he was a partner. The Times account said Mr. Blair then warned the Clintons that Mr. H