-Caveat Lector-
NYTimes
January 20, 2001
Correspondence and Agreed Order in the Settlement of Clinton's Case
Following are the texts of letters exchanged yesterday between
David E. Kendall, a lawyer for President Clinton, and Robert W.
Ray, the independent counsel, in which they agreed to a
settlement. The passages in italics were underlined in the
original. Also included is the order that the Circuit Court of
Pulaski County, Ark., issued yesterday, suspending for five years
the president's right to practice law in Arkansas.
>From Mr. Kendall
Dear Mr. Ray:
We have had many discussions in recent days, both in person and
by telephone. As you know, we are taking steps to bring this
matter to a timely and appropriate conclusion, which the
president believes is in the best interest of the country and his
family. We know that you, too, seek to do what you believe is
best for the country, and we appreciate the way in which you are
discharging your responsibilities under the Independent Counsel
Act.
In order to conclude this matter, we have met with the Arkansas
Committee on Professional Conduct to settle the lawsuit arising
out of the president's deposition testimony in the Paula Jones
case. I am attaching to this letter a copy of the Agreed Order
of Discipline which we have been able to negotiate with the
committee. The offer stated in this order remains open to us
until Friday, Jan. 19, 2001.
The president is prepared to sign this order to settle the
committee's suit. As you can see, this would mean accepting a
five-year suspension, paying a $25,000 fine (as legal fees for
the committee's outside counsel), and formally acknowledging a
violation of one of the Arkansas Rules of Professional Conduct.
The president is willing to sign this order, notwithstanding that
a five-year suspension is far harsher than appropriate under the
Arkansas precedents for this type of conduct (not having occurred
during the practice of law and not involving a criminal
conviction). Typically, the committee has issued a reprimand in
these circumstances. As you can see from the recent cases
decided by the Arkansas Supreme Court, which we provided to your
office, five-year suspensions have been imposed on lawyers who
had pleaded guilty to several criminal charges and served several
months in the federal penitentiary. While we therefore disagree
with the terms the committee is seeking, the president has
decided he would be willing to accept this harsh settlement to do
whatever he can to achieve closure before he leaves office.
In that same vein, the president has decided he will not seek any
legal fees to which he might otherwise become entitled under the
Independent Counsel Act as a result of the Lewinsky
investigation. Thus, we will not file an application with the
Special Division for reimbursement of those fees.
As we have discussed, the president described to the grand jury
on Aug. 17, 1998, what he had attempted to do in his deposition.
He stated that when he was deposed, "I was doing my best to be
truthful," "I wanted to be legal without being particularly
helpful," "my goal in this deposition was to be truthful but I
did not wish to do the work of the Jones lawyers," and "I was
determined to walk through the mine field of this deposition
without violating the law, and I believe I did." Reasonable
people may conclude he crossed over that line he was trying to
walk, and walking that line was plainly a dangerous and risky
exercise. But when it comes to stating now what the president's
intent was then in the deposition, all he can in conscience do is
say what he told the earlier grand jury: he tried to avoid
testifying falsely. When it comes to what his subjective
motivation was, what the president actually believed, however
successful he ultimately might have been in walking that line,
all he can do is to state what that was.
We respect and agree with the goal you have articulated of
bringing this matter to closure in the best interests of the
country. We have attempted to do all we can to achieve that end.
I believe that our mutual communications have been professional,
candid and, as appropriate, confidential. I think both sides
have discharged our respective duties and responsibilities in a
fair and honorable way.
Given the steps the president is prepared to take, we know he
might be legally prejudiced, as you have acknowledged in our
discussions, if he signed the order prior to having an assurance
there would be no prosecution. I am confident that, were you in
our shoes, you would show the same prudence. For that reason, we
would need to hear from you prior to proceeding to sign the
order, which the president is prepared to do immediately.
In the public statement you made on the day you took office 15
months ago, you quoted Justice Sutherland's words in Berer v.
United States, written over 65 years ago, that "the government's
interest in a matter entrusted to a prosecutor is to act fairly
and impartially: `not that it should win a case, but that justice
shall be done.' " I believe that the president has paid an
extraordinarily high price for his conduct and that it is now
time to bring this matter to a conclusion without further action
against him. I hope you will agree that, in the unique
circumstances of this highly publicized matter, this would,
finally, constitute justice.
>From Mr. Ray
Dear Mr. Kendall:
This letter responds to your presentation to me of an agreed
order of discipline with respect to a complaint by the Arkansas
Supreme Court Committee on Professional Conduct, signed by
President Clinton, and a written copy of a prepared public
statement that President Clinton intends to issue regarding his
agreement to and acceptance of the terms of the order.
Upon entry of that order by the Pulaski County Circuit Court and
following the president's issuance of his public statement, I
have decided to exercise my discretion, consistent with the
principles of federal prosecution, to decline prosecution, with
prejudice, of all matters within the Jan. 16, 1998,
jurisdictional mandate of the United States Court of Appeals for
the District of Columbia Circuit, Division 94-1, for the purpose
of appointing independent counsels. Subject to the foregoing
terms, the investigation is now concluded, and Grand Jury 2000-3
(impaneled July 11, 2000) will thereafter be discharged.
Agreed Order of Discipline
Come now the parties hereto and agree to the following order of
this court in settlement of the pending action:
The formal charges of misconduct upon which this order is based
arose out of information referred to the Committee on
Professional Conduct by the Honorable Susan Webber Wright, chief
United States district judge for the Eastern District of
Arkansas. The information pertained to William Jefferson
Clinton's deposition testimony in a civil case brought by Ms.
Paula Jones in which he was a defendant, Jones v. Clinton.
Mr. Clinton was admitted to the Arkansas bar on Sept. 7, 1973.
On June 30, 1990, he requested that his Arkansas license be
placed on inactive status for continuing legal education
purposes, and this request was granted. The conduct at issue
here does not arise out of Mr. Clinton's practice of law. At
all times material to this case, Mr. Clinton resided in
Washington, D.C., but he remained subject to the Model Rules of
Professional Conduct for the State of Arkansas.
On April 1, 1998, Judge Wright granted summary judgment to Mr.
Clinton, but she subsequently found him in civil contempt in a
32-page memorandum opinion and order issued on April 12, 1999,
ruling that he had "deliberately violated this court's discovery
orders and thereby undermined the integrity of the judicial
system."
Judge Wright found that Mr. Clinton had "responded to
plaintiff's questions by giving false, misleading and evasive
answers that were designed to obstruct the judicial process
[concerning] whether he and Ms. Lewinsky had ever been alone
together and whether he had ever engaged in sexual relations with
Ms. Lewinsky."
Judge Wright offered Mr. Clinton a hearing, which he declined by
a letter from his counsel, dated May 7, 1999. Mr. Clinton was
subsequently ordered to pay, and did pay, over $90,000, pursuant
to the court's contempt findings. Judge Wright also referred the
matter to the committee "for review and any action it deems
appropriate." Mr. Clinton's actions, which are the subject of
this agreed order, have subjected him to a great deal of public
criticism. Twice elected president of the United States, he
became only the second president ever impeached and tried by the
Senate, where he was acquitted. After Ms. Jones took an appeal
of the dismissal of her case, Mr. Clinton settled with her for
$850,000, a sum greater than her initial ad damnum in her
complaint. As already indicated, Mr. Clinton was held in civil
contempt and fined over $90,000.
Prior to Judge Wright's referral, Mr. Clinton had no prior
disciplinary record with the committee, including any private
warnings. He had been a member in good standing of the Arkansas
bar for over 25 years. He has cooperated fully with the
committee in its investigation of this matter and has furnished
information to the committee in a timely fashion.
Mr. Clinton's conduct, as described in the order, caused the
court and counsel for the parties to expend unnecessary time,
effort, and resources. It set a poor example for other
litigants, and this damaging effect was magnified by the fact
that at the time of his deposition testimony, Mr. Clinton was
serving as president of the United States.
Judge Wright ruled that the testimony concerning Ms. Lewinsky
"was not essential to the core issues in this case and, in fact,
that some of this evidence might even be inadmissible."
Judge Wright dismissed the case on the merits by granting Mr.
Clinton summary judgment, declaring that the case was "lacking in
merit, a decision that would not have changed even had the
president been truthful with respect to his relationship with Ms.
Lewinsky." As Judge Wright also observed, as a result of Mr.
Clinton's paying $850,000 in settlement, "plaintiff was made
whole, having agreed to a settlement in excess of that prayed for
in the complaint." Mr. Clinton also paid to plaintiff $89,484 as
the "reasonable expenses, including attorneys fees, caused by his
willful failure to obey the court's discovery orders."
On May 22, 2000, after receiving complaints from Judge Wright and
the Southeastern Legal Foundation, the committee voted to
initiate disbarment proceedings against Mr. Clinton. On June
30, 2000, counsel for the committee filed a complaint seeking
disbarment in Pulaski County Circuit Court, Neal v. Clinton,
Civ. No.2000-5677. Mr. Clinton filed an answer on Aug. 29,
2000, and the case is in the early stages of discovery. In this
agreed order, Mr. Clinton admits and acknowledges, and the court,
therefore, finds that:
A. That he knowingly gave evasive and misleading answers, in
violation of Judge Wright's discovery orders, concerning his
relationship with Ms. Lewinsky, in an attempt to conceal from
plaintiff Jones's lawyers the true facts about his improper
relationship with Ms. Lewinsky, which had ended almost a year
earlier.
B. That by knowingly giving evasive and misleading answers, in
violation of Judge Wright's discovery orders, he engaged in
conduct that is prejudicial to the administration of justice in
that his discovery responses interfered with the conduct of the
Jones case by causing the court and counsel for the parties to
expend unnecessary time, effort, and resources, setting a poor
example for other litigants, and causing the court to issue a
32-page order civilly sanctioning Mr. Clinton. Upon
consideration of the proposed agreed order, the entire record
before the court, the advice of counsel, and the Arkansas Model
Rules of Professional Conduct, the court finds:
1. That Mr. Clinton's conduct, heretofore set forth, in the
Jones case violated Model Rule 8.4(d), when he gave knowingly
evasive and misleading discovery responses concerning his
relationship with Ms. Lewinsky, in violation of Judge Wright's
discovery orders.
Model Rule 8.4(d), states that it is professional misconduct for
a lawyer to "engage in conduct that is prejudicial to the
administration of justice."
WHEREFORE, it is the decision and order of this court that
William Jefferson Clinton be, and hereby is, suspended for five
years for his conduct in this matter, and the payment of fine in
the amount of $25,000. The suspension shall become effective as
of the date of Jan. 19, 2001.
It is so ordered.
=================================================================
Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF:
*Michael Spitzer* <[EMAIL PROTECTED]>
~~~~~~~~~~~~~~~
The Best Way To Destroy Enemies Is To Change Them To Friends
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