And Why His Legal
Jeopardy Will Only Grow
By BRADFORD A. BERENSON
President Clinton told the nation on Monday night that it is time to "move
on" and put an end to the investigation of his affair with Monica Lewinsky.
Unfortunately for Mr. Clinton, the investigation cannot be ended.
Independent Counsel Kenneth Starr is legally obligated to continue the
inquiry until he either issues a report to Congress or concludes that he does
not have, in the words of the statute that controls his investigation,
"substantial and credible information . . . that may constitute grounds for an
impeachment."
In that regard, the president's grand jury testimony
may have made matters worse, rather than better.
Impeachment is a political process once it begins,
but the decision about whether to begin the process
will depend in large measure on matters of law. In
the wake of his testimony, Mr. Clinton may be more
vulnerable than ever to potentially serious allegations
of criminal misconduct in the Paula Jones case.
Depending on Mr. Starr's evidence, the president
may also have paved the way for Mr. Starr to
include in a report to Congress the most damaging
allegation of all: that Mr. Clinton committed perjury
before the grand jury.
On the question of perjury in the Jones case, the president appears to have
tried to thread the needle, admitting a sexual relationship with Ms. Lewinsky
but contending that his denial of that relationship in the deposition was, as he
said Monday night, "legally accurate." The problem is that the needle has no
eye. Recent spin-talk has suggested that the Jones definition of sexual
relations is open to an interpretation that would not cover receiving oral sex.
But this is nonsense.
Under that definition, "a person engages in 'sexual relations' when the
person knowingly engages in or causes contact with the genitalia . . . of any
person with an intent to arouse or gratify the sexual desire of any person."
"Any person" obviously includes the president, and the definition makes no
distinction based on specific sex acts or an individual's active or passive role
in them. If Ms. Lewinsky had sexual relations with Mr. Clinton, he--need
we really say it?--had sexual relations with her.
Thus, the president cannot plausibly claim that his lie under oath in the Jones
suit was unintentional or made in good faith. His only available defense
would be to argue that the lie was immaterial. But this argument does not
exonerate him of moral culpability for lying under oath. What's more, the
law on this point is unsettled; the most compelling view is that the materiality
of a false statement under oath is judged as of the time the statement is
made, rather than in light of subsequent events (such as Judge Susan
Webber Wright's decision to exclude Lewinsky evidence from the Jones
suit or her later dismissal of the suit).
Mr. Clinton made other questionable statements under oath in the Jones
case, and Mr. Starr's prosecutors may have substantial evidence that these
statements were false. Mr. Clinton's admission of an "inappropriate"
relationship with Ms. Lewinsky makes it almost certain that his claimed
failure to remember ever being alone with her, except perhaps on one or
two occasions when she brought him a pizza or papers to sign, was a lie.
And the president gave answers under oath concerning his discussions with
Ms. Lewinsky about her subpoena, the nature of his meeting with her
around Christmas 1997, and his encounter with Kathleen Willey, all of
which we now know have been contradicted by the testimony of those
women.
The safest bet in this entire matter is that Mr. Starr has considerably more
evidence than any of us are yet aware of. But even if he had no other
evidence, these conflicts in testimony alone, particularly in light of the
president's now-admitted lie on a closely related subject, would likely be
sufficient to merit inclusion in an impeachment report. In such a report, Mr.
Starr must include any and all allegations of criminality that are supported by
"substantial and credible information"; he does not need to prove beyond a
reasonable doubt that Mr. Clinton committed a crime.
Then there is the question of obstruction of justice and subornation of
perjury in the Jones suit. When Ms. Jones's lawyers first began questioning
the president about Monica Lewinsky, Mr. Clinton's lawyer Robert Bennett
vigorously objected, treating Judge Wright to an extended discussion of
how Ms. Lewinsky's affidavit denying any sexual relationship with the
president ought to preclude an inquiry into this subject. Mr. Clinton sat mute
during this exchange and deliberately allowed his lawyer to urge upon the
court evidence the president knew to be false and fraudulent. Mr. Clinton's
evident lack of surprise, coupled with his parallel denials under oath, tend to
support the inference that he and Ms. Lewinsky were indeed operating in
tandem.
In addition, now that Mr. Clinton has in effect admitted lying under oath, he
is going to have a difficult time convincing Mr. Starr that there was an
innocent explanation for seeking the return of the gifts he gave Ms.
Lewinsky or for the assistance his powerful friends gave her in her job
search. What could have motivated these contemporaneous actions other
than an effort to conceal the relationship? Friendship might explain job help,
but it certainly would not explain taking back gifts. And whatever
explanation of the gifts the president offers is going to have to square with
the accounts of both Ms. Lewinsky and of his private secretary, Betty
Currie. Otherwise, the contradiction in testimony would surely qualify as
"substantial and credible information" that would have to be included in an
impeachment report.
Mr. Starr also has testimony from Ms. Lewinsky and Ms. Currie about
conversations they had with the president in which he reportedly coached
them, albeit indirectly, about what he wanted them to say if they were
questioned. This, too, could form the basis for a finding in the report of
witness tampering or obstruction of justice, even in the absence of other
evidence. The president might deny these conversations occurred or he
might explain them differently, but it is unlikely he would win any credibility
contests.
This highlights the single most important respect in which the president's
testimony may have exacerbated his legal and political problems. A strategy
of full confession and apology might have made his conduct in the Jones
case even harder to defend than it now is, but at least it would have
confined his problems to whatever occurred before this week. The strategy
Mr. Clinton followed instead--admitting as little as possible, to the point of
refusing even to admit that his sexual relationship with Ms. Lewinsky
rendered his testimony in the Jones suit false--means that the prosecutors
may have ample basis to make a case that the president committed perjury
or obstruction of justice in the grand jury proceeding. The president's
reported refusal to answer certain questions without adequate legal
justification could also represent an effort to impede the due administration
of justice.
Mr. Starr may, therefore, end up issuing a report to the House alleging not
only that the president personally committed perjury, witness tampering and
obstruction of justice in the Jones suit, but also that coverup efforts by the
president himself continued through the grand jury investigation, even after
he was fully aware of the consequences.
Such a report, if backed up by persuasive evidence, would be politically
devastating. And no matter what happens as a result of the president's
political jeopardy, he will remain in legal jeopardy even after he leaves
office. For the statute of limitations will not have expired by Jan. 20, 2001.
Far from putting the Lewinsky affair behind him, the president's testimony
may simply have aided its transition into a new and even more damaging
phase.
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