This might be how the legality arguments play out... from Wash Post
"Did the Independent
Counsel Make His Case?
By Suzanna Sherry
Sunday, September 20, 1998; Page C01
Since its release more than a week ago, independent counsel Kenneth
Starr's report to Congress has been the subject of fierce public debate
about its sexual content and political purpose. But over the next few
months, the lawyers assisting the House Judiciary Committee will be
reading and interpreting it primarily as a legal document. So let's ask the
questions that a counsel to the committee might pose: Does Starr's legal
reasoning and presentation of the evidence hold up? Does the report
satisfy the responsibilities outlined under the independent counsel statute?
Starr's mandate, he tells us at the outset of his report, is not to determine
whether the alleged acts actually warrant impeachment. The law calls on
the independent counsel to advise the House of Representatives of "any
substantial and credible information . . . that may constitute grounds for an
impeachment," and in his report, Starr says he is simply exercising his
"judgment about the seriousness of the acts revealed by the evidence."
But Starr's judgment is inevitably influenced by his view of impeachment.
Before presenting his evidence, he tells us that whatever rights of privacy
other citizens might possess, and whatever discretion a prosecutor might
exercise when an ordinary citizen commits perjury in a civil suit that is
subsequently dismissed, the president is different. According to the report,
the president has "a manifest duty to ensure that his conduct at all times
complies with the law of the land." Any violation of any law--however
trivial and in whatever context--apparently constitutes grounds for
impeachment in Starr's view.
This is a broad reading of the impeachment clause of the Constitution,
which specifies only treason, bribery and "other high crimes and
misdemeanors" as impeachable offenses. Only some criminal acts (and
perhaps some non-criminal acts) are grounds for impeachment, and Starr's
task as a lawyer was to sort the wheat from the chaff. The report
represents his best effort and his best evidence. We might be intrigued by
the videotapes of the president's grand jury testimony and by evidence
from the 17 additional boxes, but Starr will have put his strongest evidence
in the report. How did he do?
The first two of the 11 charges are for perjury--intentionally lying under
oath about legally relevant facts. The report alleges that President Clinton
lied under oath both in his deposition in the Paula Jones civil lawsuit and in
his testimony before the grand jury. In both cases Clinton denied ever
having had sexual relations with Monica Lewinsky.
The definition of sexual relations is key to these two charges. Presiding
over Clinton's deposition in the Jones case, Judge Susan Webber Wright
limited the definition of sexual relations to having "contact with the genitalia,
anus, groin, breast, inner thigh, or buttocks of any person." Thus, if
Lewinsky performed oral sex on Clinton--as the report persuasively
shows--but the president did not otherwise touch her, he did not engage in
sexual relations (although she did). Strange and legalistic as that definition
may be, it is the one that determines whether Clinton committed perjury.
Under that definition, the numerous instances of oral sex cited in the Starr
report do not constitute sexual relations. The sordid detail about oral sex,
then, is irrelevant to Starr's case.
The relevant question is whether Clinton touched Lewinsky. On that
question, the rather repetitive detail of the report is both useful and
extremely persuasive in making the case that Clinton did commit
perjury--both in his deposition and before the grand jury--because he in
fact engaged in conduct within that definition, touching Lewinsky's breasts
and genitals. The report carefully documents not only Lewinsky's own
testimony but the corroborating evidence that leads the reader to believe
she was telling the truth. Faced with a classically difficult problem in
persuasion (if she says he fondled her and he says he didn't, whom should
we believe?), Starr masterfully finesses the dilemma by showing that
Lewinsky's testimony on almost every other point is consistent and
corroborated, thus suggesting that she is a credible witness. Even the
somewhat tricky fact that not all her comings and goings are corroborated
by White House records is nicely accounted for: The report points out that
not only are employee entries and exits sometimes left unrecorded, but the
president's personal secretary, Betty Currie, testified that she brought
Lewinsky into the White House in ways that left no trace of her presence.
The third count is also a perjury charge; that Clinton lied when he claimed
not to recall being alone with Lewinsky or exchanging gifts with her. Here,
Starr did not need much legal acumen to document his case. As the report
points out, it is implausible that Clinton would not recall being alone with
Lewinsky when she performed oral sex on him. This charge thus stands or
falls with the preceding two, and is hardly worth a separate count.
After that, however, the charges get more legally fanciful and less
persuasively argued than the first three. The other two perjury charges
(counts four and eight in the report) relate to Clinton's civil deposition: He
lied when he claimed not to recall discussing the Jones case with Lewinsky
and when he claimed not to recall discussions with Vernon Jordan about
Lewinsky's involvement in the Jones case. While legally sound if true, these
charges are simply not backed up by the fragmentary evidence that Starr
presents.
Starr also presents three charges of obstruction of justice (counts five, six
and seven in the report) in connection with Clinton's conduct in the Jones
civil case. The report alleges that Clinton helped Lewinsky conceal both
their relationship and his gifts to her and that he tried to ensure her silence
by helping her get a job in New York.
There are two problems with Starr's allegations of obstruction of justice
here. First, the evidence is extremely weak--a melange of
half-remembered, equivocal and inconsistent statements by different
people. Lewinsky and Currie disagreed about whose idea it was for Currie
to take the gifts from Lewinsky, but neither testified that it was the
president's idea. Even Lewinsky testified that the president was
noncommittal when she asked him whether she should dispose of the gifts
he had given her. And Lewinsky's own testimony suggests that she needed
neither Clinton's help nor his encouragement in deciding that she would lie
in her own affidavit.
The obstruction of justice charges also stretch the meaning of the
obstruction statute well beyond its core purposes. Many (although not all)
federal obstruction of justice cases involve bribery or intimidation. Most
involve massive criminal investigations rather than a single civil trial. One
court has suggested that the defendant's sole purpose must be to obstruct
justice, which also confirms that trying to keeping a sexual affair
secret--even in the context of an unrelated civil suit--is not quite the same
as intimidating jurors in a criminal prosecution, or other typical examples of
obstruction.
This is not to say that Starr's charges--if based on a stronger factual
record--could never constitute obstruction of justice, just that they are far
from the core purpose of the obstruction statute. The closest these charges
come to alleging serious obstruction of justice is the claim that Clinton tried
to buy Lewinsky's silence with a job in New York. But that charge--while
it smacks of bribery and therefore of obstruction of justice--is the weakest
of these three on the facts: All the evidence suggests that in the Jones suit,
Lewinsky had no intention of revealing their affair and that Clinton's efforts
on her behalf were the result of his feelings of guilt about their relationship.
The fourth charge for obstruction of justice (ninth charge in the report) is
poorly presented but nevertheless more troubling. Starr argues that in
asking Currie whether she agreed with his various statements about
Lewinsky, Clinton was asking Currie to lie. Starr is equivocal about the
statutory basis for this charge: It might be another obstruction of justice
charge, or it might be based on the separate law prohibiting witness
tampering. The report carefully preserves the viability of a tampering
charge by documenting that Currie might eventually have been called as a
witness in the Jones case. The problem is that witness tampering requires
force, threats, intimidation or harassment, and there are no allegations of
any intimidation or other prohibited conduct.
Even leaving aside that the facts probably do not support any charge here,
Starr did not help his case by fudging on the statutory basis. If he had
focused on obstruction of justice rather than attempting to bring in a charge
of tampering, he might have presented a more persuasive case. It is bad
enough for a lawyer to make a poor argument when no better one is
available, but it is worse when the lawyer overlooks a stronger case in his
zeal to make a weak one.
The last two charges--numbers 10 and 11--might be characterized,
respectively, as nonsense and nonsense on stilts. The 10th charge is that
Clinton obstructed justice by lying to his aides and simultaneously refusing
to testify himself; the 11th is that Clinton abused his constitutional authority
by lying to the American people and to Congress and by attempting to
invoke executive privilege.
The 10th charge is the weakest of all the purported criminal offenses.
Clinton's refusal to testify was entirely justified: He, like every other person
in the United States, has an absolute constitutional right to refuse to give
potentially self-incriminating testimony. If his refusal to testify constitutes
obstruction of justice, then every criminal lawyer in the country has aided
and abetted obstruction. Starr obviously understands that, and therefore
tries to argue that by lying to his aides while refusing to testify himself,
Clinton allowed his aides to mislead the grand jury.
Give Starr high marks for creativity, but this argument simply won't hold
up. Obstruction of justice requires an intent to impede a judicial
proceeding, and Starr presents no evidence whatsoever that Clinton's
motive for lying to his aides had anything to do with the grand jury
investigation. Does anyone really believe that Clinton would have admitted
the affair to his aides in the absence of an ongoing investigation? All of the
testimony Starr presents suggests that Clinton tried to keep the affair from
his aides from the very beginning.
The 11th is the only charge that does not purport to be a criminal offense:
abusing the authority of the office. First, of course, it is patently ridiculous
to suggest that merely making legal arguments--invoking executive
privilege--could ever be an abuse of authority. Even beyond that particular
allegation, however, this charge is where Starr's lack of judgment shows
most clearly.
No prosecutor with good judgment would bring charges of perjury and
obstruction of justice alone, without any underlying substantive criminal
offense. (Occasional public sentiment to the contrary notwithstanding,
sexual harassment is not a criminal offense, nor is having consensual sexual
relations with an adult woman young enough to be your daughter.) No
prosecutor with good judgment would bring charges of perjury or
obstruction of justice in connection with a deposition that was ultimately
ruled immaterial to the underlying civil case (as Judge Wright held). No
prosecutor with good judgment would try to bootstrap even valid perjury
charges into more serious obstruction of justice charges.
Indeed, one of the primary functions of a lawyer's exercise of judgment is
to determine which of the available arguments should be made on behalf of
a client. Sometimes it is in the best interests of a client not to make even
some sound legal arguments. When the dust finally settles, will Starr's
client--the United States--be better off as a result of Starr's report?
The real question is not whether Clinton committed criminal offenses, but
whether he committed impeachable offenses--"high crimes and
misdemeanors." Starr stretches that language by assuming that any untruth
is an impeachable offense: In addition to charging that Clinton lied to
official bodies, the report castigates him for lying to his own aides and
culminates in the final charge that he deceived Congress and the American
people.
But what exactly did Clinton do? He had an extramarital affair and he lied
about it--to Congress, to the American people, to a grand jury, to his own
aides and in a civil deposition. He didn't lie about any matter of foreign or
domestic policy, or about any expenditure of public funds. Impeachment
should be reserved for offenses that use political power to subvert the
Constitution or undermine the national welfare. Being fallible is not an
impeachable offense.
It takes judgment to recognize the difference between moral failings and
abuse of constitutional authority. In ignoring that difference, Starr was not
thinking like a lawyer. He was thinking like a politician--and that's precisely
what Congress enacted the independent counsel statute to avoid.
Suzanna Sherry is the Earl R. Larson Professor of Civil Rights and Civil
Liberties Law at the University of Minnesota.
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