Clinton, perjury and the rule of U.S. law

The Republican arguments in the just-completed impeachment debate celebrated the rule of law and denigrated the work of lawyers, particularly the president’s lawyers. I found the Republicans’ argument more than slightly ironic: The core argument for the president’s impeachment, that he commited perjury, cries out for analysis by lawyers.

Perjury, in simple terms, is not just a lie under oath, but a material lie under oath, a lie under oath which is capable of affecting the ultimate result of the proceedings. American voters have understood this distinction even if their elected representatives have not. Shortly afater the scandal broke, a clerk at a local convenience store asked me, “What’s this got to do with Paula Jones’ claim? How’d they ever get to ask him those questions?”

As Kenneth Starr ultimately proved, the Lewinsky affair was never material to Jones’ lawsuit. Jones’ lawyers were allowed by Judge Wright, in pre-trial proceedings, to ask a host of questions that would never be permissible at trial. The alleged basis for these questions was that they be allowed to determine whether the president had engaged in sexual relations with other women as part of determining whether those women had been sexually harassed. However, if those inquiries revealed only consensual sexual relations with such other women, then the information could never be used at trial to prove than then-Gov. Clinton had sexually harassed Paula Jones.

Were the Jones lawsuit designed to prove Paula Jones’ claim, then what we have learned through Kenneth Starr about Monica Lewinsky was devastating to that claim. Monica Lewinsky, when questioned by Starr’s prosecutors, described a relationship in which she pursued the president, asked him for greater intimacy, and settled for extended foreplay. No one could read her testimony and conclude that she had ever been sexually harassed by the president.

If Paul Jones’ lawyers were to have offered the Lewinsky affair as evidence that her experience was similar, they would have damned thier client. Evidence of the Lewinsky-Clinton liaison would have actually suggested that Paula Jones was the pursuer, a contention made by the president’s co-defendant in the Jones suit, former Arkansas State Trooper, Danny Ferguson.

Imagine as Maine prosecutor trying to prove a rape case by calling before the jury 10 different women who had eagerly engaged in sexual foreplay with the defendant but were rebuffed in their attempts at sexual intercourse. While any defense counsel would prevail in an objection that the witnesses were not material, a shrewder defense counsel would not object to the evidence since every witness would tend to prove that the alleged victim of the rape had consented.

Why would the Jones lawyers pursue irrelevant information potentially destructive to their client’s case? Since they had been thoroughly briefed by Linda Tripp, these lawyers knew the nature of the Lewisky-Clinton relationship before deposing Clinton. The only answer is that Paula Jones’ case had nothing to do with her vindication and everything to do with simply embarrasing the president. For confirmation one need look no farther than the political connections of both sets of Jones lawyers and the Rutherford Institute which underwrote the costs of that litigation.

If the Lewinsky affair was immaterial to Paula Jones’ lawsuit, then no perjury by the president occurred. Similarly, the derivative claim of perjury before the grand jury fails. Kenneth Starr’s claims of perjury there come down to a debate between the president and Lewinsky about where and when he touched her. Beyond these same problems of materiality, this claim fails under the two-witness rule which requires two actual witnesses to the disputed facts to prove any perjury.

Will the Senate apply the rule of law and dismiss these perjury claims? I am not hopeful based on the last time I heard a U.S. senator discuss perjury. In the Anita Hill-Clarence Thomas hearings, Sen. Arlene Specter accused HIll of “flat-out perjury.” Of course, since no one else witnessed what happened between Hill and Thomas, perjury by either could never be proven. Ironically, if one were looking to prove that sexual harassment by Thomas had occurred, there were two witnesses, Angela Wright and Sukari Hardnett, who had experienced on the job harassment by Clarence Thomas strikingly similar to that claimed by Hill. Sen. Specter helped convince the Senate judiciary committee not to call those witnesses.

Is there a better forum for deciding whether the president has committed perjury? A jury of any 12 citizens, properly instructed in the law, is far more suited to such a task than a busy United States Senate, weighed down by partisanship and oblivious to the law.

I have consistently wondered why Starr wasn’t content to try the president after his term had ended. His spokesman, Mr. Bakaly, finally conceded in late November why this was noit likely to happen: “Perjury cases are tough to prove.”

Knowing that he had claims of perjury upon which his grand jury might not indict and a jury wouldn’t convict, Kenneth Starr chose the only forum in which a bare majority of decision-makers might agree with him: a Republian Congress.

Somehow this doesn’t strik me as honoring the rule of law.

Arthur J. Greif is an attorney in Bangor.