NOTICE IS HEREBY GIVEN that the Court will hold a hearing on Julie Hiatt Steele’s Motion to Dismiss Indictment For Lack of Prosecutorial Jurisdiction, Steele Pretrial Motion No. 9, on Friday, March 12, 1999 at 9:00 a.m.

DATED: March 5, 1999

Julie Hiatt Steele, through undersigned counsel, respectfully requests that the Court dismiss the indictment in the above-captioned matter for lack of prosecutorial jurisdiction.

In support of her motion, Ms. Steele relies on the accompanying Memorandum of Law.

WHEREFORE, for the reasons set forth in the attached memorandum of law, Ms. Steele respectfully requests the Court to dismiss the indictment.

DATED: March 5, 1999

The Office of Independent Counsel ("OIC") did not and does not have jurisdiction to prosecute Julie Hiatt Steele. Independent counsels' prosecutorial jurisdiction is specifically limited by statute. Strict confinement to that jurisdiction is not only required by law, but is mandated by the Constitution. The OIC simply has no basis in fact or law for claiming that Ms. Steele is within the narrow purview of the OIC's current jurisdiction.

The remoteness of Ms. Steele's connection to the OIC's investigation is clear from a cursory examination of the facts: The OIC's authority was to investigate obstruction of justice in Jones v. Clinton; Ms. Steele was neither a witness in the case nor did she communicate with any witness in that case about that witness' testimony. In addition, the implications of Ms. Steele's indictment seriously undermine the legal and constitutional bases of the Independent Counsel Statute. For the foregoing reasons, the Indictment must be dismissed.

In May 1994, Paula Jones brought a civil sexual harassment suit against William Jefferson Clinton, President of the United States, in federal district court in Arkansas. Sometime after Ms. Jones' lawsuit was initiated, reports began surfacing that Kathleen Willey, a supporter of President Clinton's who worked as a volunteer in the White House after the President was elected in 1992, may have been an unwilling recipient of a sexual advance by the President.

In early 1997, Willey was interviewed by a Newsweek reporter and, after this meeting, Willey called Ms. Steele and asked her to lie to the reporter. Steele was to tell him that she (Willey) had gone to Ms. Steele's to tell Ms. Steele that the President had "groped" her, and that she (Willey) appeared "upset" and "humiliated." When Ms. Steele learned the reporter intended to print the story, she told him that she had lied for Willey. Willey apparently does not dispute that she asked Ms. Steele to talk to the reporter, but she claims she did not ask Ms. Steele to lie to him. Indictment at ¶¶ 8-9.

In the course of the litigation, Ms. Jones' attorneys subpoenaed Willey. In September 1997, Willey filed a false affidavit in the Jones v. Clinton case, in which she stated that she had no information relating to Jones' action. In December 1997, Judge Webber-Wright issued an Order that apparently ruled that Willey's testimony was not relevant to the Jones v. Clinton case. In her Order, granting in part and denying in part plaintiff's motion to compel interrogatories, Judge Webber-Wright stated that the classes of individuals relevant to the Jones v. Clinton case were (1) federal or state employees and (2) persons whose liaisons with Mr. Clinton were concealed, procured, protected, and/or facilitated by Arkansas State Troopers. See 12/11/97 Order in Jones v. Clinton. (Attached at Exhibit "A"). Simply put, Kathleen Willey was legally immaterial to Jones v. Clinton.

Shortly after Paula Jones initiated her lawsuit against the President, Kenneth Starr was appointed as Independent Counsel to investigate the President on entirely separate charges involving the failed Whitewater land deal. Mr. Starr's precise jurisdiction, as granted by the Special Division, gave him the authority to investigate:

Order Appointing Independent Counsel at 2 (Spec. Div. Aug. 5, 1994).

In January 1998 when the OIC was presented with allegations that the President, Monica Lewinsky, and others had engaged in conduct to disguise Ms. Lewinsky's relationship with the President to avoid revealing it in the Jones v. Clinton lawsuit, the OIC submitted his evidence to the Attorney General who expanded his jurisdiction as follows:

Order Expanding Jurisdiction (Spec. Div. Jan. 1, 1998). The OIC began an investigation into potential obstruction of justice and related charges connected to Jones v. Clinton in January 1998 in the District of Columbia. It was in the course of this investigation that the OIC decided to indict Ms. Steele.

By the time the OIC received permission to investigate obstruction of justice in Jones v. Clinton, Willey was legally irrelevant to that case. Perhaps that is why the OIC chose to give Willey transactional immunity for her obstruction of justice and false affidavit in that case.

Julie Hiatt Steele has no connection whatsoever to President Clinton, Paula Jones or the Jones v. Clinton case. Willey, who filed a false affidavit and subsequently gave a false deposition in Jones v. Clinton, was contradicted by Ms. Steele only in the press. Unbeknownst to Ms. Steele, Willey filed an affidavit in Jones v. Clinton which was inconsistent with what Willey had told Newsweek and with what Willey had told Steele to tell Newsweek.

When Judge Weber-Wright entered the Order that seemingly made Willey's testimony irrelevant for purposes of Jones v. Clinton, Willey was beyond the OIC's jurisdiction. Even assuming Willey was within his jurisdiction, Ms. Steele was not. She was not a witness, she did not file an affidavit or give a deposition, nor did she ever speak with a witness in Jones v. Clinton. Nevertheless, the OIC charged Ms. Steele with obstruction of justice because she told a reporter that Willey had asked that she lie. The OIC apparently believes that Willey told the truth about the "grope," that she told Ms. Steele about it, and that Ms. Steele is lying about this alleged "conversation." See, e.g. Indictment at ¶ 36 ("In truth and in fact . . . Kathleen Willey told . . . Steele about the alleged sexual advances. . . ."). Even assuming this allegation is true, it does not fall within the OIC's jurisdictional mandate.

The Ethics in Government Act, 28 U.S.C. §§ 591-599, ("Act") provides for temporary independent counsel "to investigate and, if appropriate, prosecute certain high-ranking Government officials for violations of federal criminal laws." Morrison v. Olson, 487 U.S. 654, 660 (1988). The Act prescribes specific procedures for invoking an independent counsel investigation, 28 U.S.C. §§ 591-593, and for the actual operation of the investigation, including expanding the investigations jurisdiction. 28 U.S.C. §§ 594-595. The main players in this statutory framework are: the Attorney General, the division of the United States Court of Appeals for the District of Columbia Circuit assigned to appoint independent counsels ("Special Division"), and those persons covered by the statute.

If the Attorney General receives information sufficient to constitute grounds to investigate whether a person covered by the Act violated federal law, she shall conduct a preliminary investigation. 28 U.S.C. § 591(a). If the preliminary investigation leads the Attorney General to conclude that "there are reasonable grounds to believe that further investigation is warranted," id. § 592(c)(1)(a), she then applies to the Special Division for appointment of an independent counsel. Id. § 592(c)(1).

Upon receiving an application for appointment of an independent counsel, the Special Division must select an independent counsel and define that independent counsel's jurisdiction. 28 U.S.C. § 593(b)(1). The Special Division is required to define the independent counsel's jurisdiction so that the independent counsel has authority to investigate all maters related to the subject matter outlined in the Attorney General's request. Id. § 593(b)(3). This jurisdiction includes the authority to investigate and prosecute crimes that "arise out of" the investigation itself such as perjury, obstruction of justice, destruction of evidence and intimidation of witnesses. Id. The Special Division must, however, define the independent counsel's jurisdiction so that it is "demonstrably related" to the subject matter described in the Attorney General's application. Morrison, 487 U.S. at 679.

After an investigation begins, an independent counsel may request expanded prosecutorial jurisdiction. 28 U.S.C. § 593(c). This request must be submitted to the Attorney General who then conducts a preliminary investigation pursuant to the procedures outlined in section 592, just as she would upon receipt of information to trigger the Act. Id. § 593(c)(2)(A). The Attorney General has the sole authority to decide whether jurisdiction conferred on an independent counsel should later be expanded. Id. § 593(c)(2)(B).

In this case, Mr. Starr requested, and the Attorney General granted, expanded jurisdiction to investigate, among other things, whether persons suborned perjury, obstructed justice, intimidated witnesses or otherwise violated federal law in dealing with witnesses, potential witnesses or attorneys involved in Ms. Jones' lawsuit. Order Expanding Independent Counsel Jurisdiction (Spec. Div. Jan. 16, 1998).

Ms. Steele's connection to the OIC's investigation, and the allegations set forth in her indictment, stem entirely from her relationship with Kathleen Willey. But it is unclear how the independent counsel had the jurisdiction to investigate Ms. Willey -- to say nothing of Ms. Steele -- in the first place.

In her December 11, 1997 Order, Judge Webber-Wright made clear that the classes of individuals relevant to the Jones v. Clinton investigation were (1) federal or state employees and (2) persons whose liaisons with Mr. Clinton were concealed, procured, protected, and/or facilitated by Arkansas State Troopers. See 12/11/97 Order in Jones v. Clinton. Neither Ms. Willey nor Ms. Steele fit into either of those categories, as she was a volunteer in the White House at the time of the alleged "grope" by President Clinton. The OIC manipulates the plain language of Judge Wright's order in an attempt to limit its scope to interrogatory answers, but Judge Wright's instructions speak for themselves: they were meant to limit the scope of the persons who were relevant to Ms. Jones' allegations, and what was reasonably calculated to lead to the discovery of admissible evidence.

Even if Ms. Willey could somehow be considered material to the Jones v. Clinton case, Ms. Steele clearly has nothing to do with it. The independent counsel's expanded jurisdiction into matters related to Jones v. Clinton does not reach Ms. Steele's off-the-record conversation with a reporter. Ms. Steele was not witness in Jones v. Clinton, nor did she submit an affidavit in connection with that case. In fact, the affidavit Ms. Steele provided to Mr. Clinton's lawyers is wholly irrelevant to Jones v. Clinton. Not only was it given to them two weeks after the filing date for discovery in that case, it dealt with Willey, a witness whose testimony was irrelevant to Jones v. Clinton. Moreover, although the indictment references Ms. Steele's discussions with John and Jane Doe - it does not allege that either was in any way connected to Jones v. Clinton.

Because Ms. Steele is clearly not connected with the events defining the OIC's jurisdiction, the OIC does not have the authority to prosecute Ms. Steele based on its current jurisdictional grant. The OIC's disregard for its own jurisdictional boundary is especially troubling because of the unique role the independent counsel plays in our system of government.

Unlike a typical federal prosecutor, an independent counsel has tightly constrained jurisdictional boundaries by which it must abide. See 28 U.S.C. 593(b)(3). This jurisdictional requirement is necessary to avoid separation of powers issues and to maintain the constitutionality of the entire Independent Counsel Act. As the Supreme Court noted, among other features of the Act, the limited jurisdiction of the independent counsel "give[s] the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties." See Morrison, 487 U.S. at 695; see also United States v. Hubbell, 1999 WL 26878 (D.C.Cir.) at *37 (Tatel J. dissenting). As Judge Tatel so clearly pointed out in the recent Hubbell case, to give independent counsel the all the "leeway" of federal prosecutors ignores, and indeed undermines, the constitutional premise of the Independent Counsel Act. Hubbell, 1999 WL 26878 at *37

In fact, independent counsel enjoy a great deal of advantages that normal federal prosecutors do not. There are nearly no external checks on the length, cost, or desirability of results of an independent counsel investigation. If the jurisdictional constraints on independent counsels are not kept, any independent counsel can be converted from "a device for investigating a specific 'subject matter' into a tool from prosecuting a specific individual." Hubbell (Tatel, J. dissenting) at *39.

The OIC cannot create jurisdiction to investigate or prosecute a person by investigating a matter for which it has no jurisdiction initially, then bootstrapping its prosecutorial jurisdiction on events triggered (or created) by its investigation. Were an independent counsel able to do so, the carefully constructed limits on Independent Counsel jurisdiction would be eliminated.

As discussed previously, an Independent Counsel's jurisdiction is carefully restricted by the Act and the Supreme Court's interpretation of the Act to maintain its constitutionality. See 28 U.S.C. §§ 593-4; Morrison, 487 U.S. at 679. The methods of expanding or interpreting this jurisdiction are carefully set forth by the statute at those same sections, and allow an Independent Counsel to investigate or prosecute a matter only when authorized by the Attorney General or its jurisdiction is interpreted by the Special Division.

The OIC seeks to utilize a new method of expanding its jurisdiction; by investigating alleged crimes or conduct outside of its jurisdiction, then bringing the targets of these investigation into its jurisdiction by alleging obstruction of the impermissible investigation. In this case, neither Willey, nor certainly Ms. Steele, were within the original scope of the OIC's jurisdiction. The OIC claims that even were this true, its jurisdiction exists because during its unconstitutional investigation, Ms. Steele is alleged to have committed crimes which now convey jurisdiction. This theory is absurd, and would not only allow an independent counsel unfettered jurisdiction, but would render the Independent Counsel Act unconstitutional. The OIC's notions in this regard should be ignored by the Court.

In it's Opposition, the OIC claims the issue is "whether the truth-finding process initiated by Paula Jones' civil, sexual harassment complaint against President Clinton . . . was skewed by conduct such as obstruction of justice and witness intimidation." We agree. But Ms. Willey's activities were not relevant to Ms. Jones' case and the OIC cannot change that simple fact.

Moreover, even if Willey were relevant, it is she who obstructed justice by filing a false affidavit in Ms. Jones' lawsuit. It is she who should have been investigated for felonious conduct. Ms. Steele did not "emerge" as a witness with respect to Willey, Gov't Opp. at 5, instead, by directing Ms. Steele to lie to Newsweek, and by filing an affidavit that was both at odds with that story and false, Ms. Willey harmed her own credibility. Ms. Steele had absolutely nothing to do with it. And if determining Ms. Willey's credibility was so important to the grand jury, the independent counsel should not have granted her transactional immunity before seeking her testimony before that body. If "corruption succeeded" in Jones v. Clinton, Gov't Opp. at 11, that is the OIC's fault, not Ms. Steele's. She was not involved in that case in any way, shape or form.

WHEREFORE, for the foregoing reasons, the Court must dismiss the indictment in the above-captioned matter for lack of prosecutorial jurisdiction.

DATED: March 5, 1999

I hereby certify that a true and correct copy of the foregoing Motion to Dismiss Indictment For Lack of Prosecutorial Jurisdiction and Memorandum of Law in Support thereof was served, via hand-delivery, on this 5th day of March, 1999, on the following:

Andrew L. Hurst

Upon consideration of Ms. Steele's Motion to Dismiss Indictment For Lack of Prosecutorial Jurisdiction, it is this _______ day of _____________, 1999, hereby

ORDERED that Ms. Steele's Motion is hereby GRANTED, and it is further

ORDERED that the indictment in this matter is dismissed.

____________________________

Hon.

United States District Court

Judge