Perjurer-in-Chief: What we knew, despite what shill like Cynthia Ayksny (whatever) said:
Experts Scoff at Perjury Loophole
Proposed for Clinton
By Peter Baker and Ruth Marcus
Washington Post Staff Writers
Saturday, August 15, 1998; Page A06
Although advisers to President Clinton believe there are legal loopholes in
his Paula Jones deposition, legal experts yesterday scoffed at the notion
that he could admit engaging in certain sexual activities with Monica S.
Lewinsky without risking a perjury allegation.
Some of the president's strategists have concluded that the definition of
"sexual relations" used by Jones's attorneys during his Jan. 17 deposition
included a narrow but important escape hatch. Under this interpretation,
advisers said, Clinton could maintain he did not understand the term to
include receiving oral sex when he denied having engaged in sexual
relations with Lewinsky.
White House advisers yesterday said Clinton had not yet decided whether
to adopt such an approach when he submits to questioning by independent
counsel Kenneth W. Starr and his deputies on Monday. Some of his
advisers are privately advocating such a strategy as the best of bad
options, acting on the assumption that Clinton has not been fully truthful
about the nature of his relationship with Lewinsky. Taking this route, they
reason, could keep him from committing perjury before in grand jury
testimony without admitting perjury in the Jones case.
"The legal view is that the Jones attorneys never nailed down either the
definition or the answer [in a way] to imperil the president," said one
adviser.
But this would not reconcile his testimony with that of Lewinsky, who
reportedly told a grand jury last week that she had an 18-month affair with
Clinton. Among other things, sources said, she has reported that Clinton
fondled her in ways that would be covered under any reading of the Jones
definition.
Moreover, independent lawyers said yesterday that acknowledging oral
sex still would conflict with Clinton's statement during the Jones deposition
that he did not remember ever being alone with Lewinsky. And most
fundamentally, analysts said, asserting that he did not believe oral sex to
constitute sexual relations would be a strained and illogical reading of the
definition, which came in a lawsuit whose central allegation was that
Clinton solicited Jones to perform oral sex.
"Frankly, it boggles the mind that when presented with the definition, the
president would sit there and look at it and say that covers one half of the
conduct, not the other, so I'm okay answering the question in that manner,"
said Debra S. Katz, a lawyer who represents plaintiffs in sexual harassment
cases. "She was in the White House performing sex acts on him and that
doesn't constitute sexual relations? I think that's a real hard sell. . . . There
does seem to be an intent to deceive with that answer."
"Talk about splitting hairs," agreed Lawrence Lorber, who represents
defendants in sexual harassment lawsuits. The argument "that you're not
engaged in sexual relations if you're allowing that contact to be done to you
rather than you doing it to the other person is creative, but my own sense
of it is that it's simply not going to hold."
With a judge's permission, the Jones attorneys adopted a definition
inspired by the federal sexual assault statute. Under this definition, shown
to Clinton as he was asked about Lewinsky, "a person engages in 'sexual
relations' when the person knowingly engages in or causes contact with the
genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an
intent to arouse or gratify the sexual desire of any person." Contact, it
added, would mean "intentional touching" even through clothing.
The crux of the argument from the Clinton camp is that the Jones definition
would not apply if he received oral sex. Under this theory, the term "any
person" would mean any person other than Clinton.
To constitute perjury under federal law, a statement must be made with the
knowledge that it is false and must be material to the case at hand.
Statements that are technically true, no matter how misleading they may be,
are not considered perjury; likewise, a false statement cannot be punished
as perjury unless the untruthfulness was deliberate.
While acknowledging that their strategy would appear legalistic and "slick"
to the general public, Clinton advisers said it was crucial he not admit to a
crime. Looking at the deposition through a technical lens, these advisers
maintained the president was required only to give a correct answer in a
literal sense and had no obligation to clarify for Jones's lawyers if they used
an imprecise definition. Moreover, they pointed out that the Lewinsky
evidence was excluded by a federal judge who ruled that it was not central
to the Jones case and the lawsuit itself was later thrown out altogether.
Therefore, they said, any misstatement would not be material as defined by
perjury law.
Jones's lawyers yesterday dismissed the Clinton argument as an "amusing
and absurd" theory that would never fly in a courtroom.
"There's little doubt in most people's minds that oral sex is sex in any sense.
What else could it be?" said John W. Whitehead, president of the
Rutherford Institute, which funds Jones's case. "Jurors by and large are
very practical, common-sense-minded people and they rarely are
impressed with a convoluted, highly technical legal argument," added
Donovan Campbell Jr., her chief counsel.
While polls have shown that most Americans do not care if Clinton
engaged in sex with Lewinsky, a new survey suggested they would not
agree with an attempt to narrowly define it. Of those interviewed by Time
magazine and CNN, 87 percent said that if Clinton and Lewinsky engaged
in oral sex it should be considered sexual relations, while only 7 percent
disagreed.
Independent experts noted that, during the deposition, Clinton made
numerous other statements about his dealings with Lewinsky, including
denying that they had an extramarital affair and asserting that he did not
recall being alone with her.
Clinton also said he did not remember discussing the Jones subpoena with
Lewinsky, although he held out the possibility that they may have joked
about her being called as a witness in the case. And he said he thought the
last time he saw Lewinsky was when she came to the White House
"probably before Christmas" to see secretary Betty Currie "and I stuck my
head out, said hello to her." Lewinsky has told investigators about a Dec.
28 meeting where they discussed the Jones case.
Columbia University law professor Gerard Lynch, a criminal law expert,
said that even if Clinton could argue that his answer to the sexual relations
question was literally true under the Jones definition, he could face other
legal problems.
"It's certainly not perjury if they completely omitted from their definition
some sex act which happens to be the one sex act that he and she had
engaged in," he said. "It's rock-solid that however misleading he may have
been -- however devious [or] dishonest he may have been -- it certainly
isn't perjury."
But he said, Clinton's testimony on other subjects could provide the
building blocks for a perjury case. While in a normal situation a witness
might avoid a perjury charge if he said he did not recall something, Lynch
noted, it would be difficult for Clinton to argue both that he did not
understand oral sex to be within the definition of sexual relations and that
he did not remember being alone with Lewinsky.
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