The Burden Of Proof
Ken Starr may be able to get the goods on Clinton and
Lewinsky, but it won't be easy
By Adam Cohen
(TIME, February 2) -- Adultery is still illegal in the District of Columbia. Have
sexual relations with a woman not your wife, the lawbooks say,
and you're looking at 180 days in jail and a $500 fine. And
until 1995, sodomy, including oral sex, was illegal in D.C. But
whatever kind of sex President Clinton did or did not have with
Monica Lewinsky, his legal problems don't lie with the morals
section of D.C. local law. It's a cluster of federal statutes,
lumped under the rubric "obstruction of justice," that could
spell trouble. As a former law professor, Clinton would have no
problem parsing their legalistic references to "knowingly" doing
this and "corruptly" doing that. But in truth they all boil down
to a principle so basic in post-Watergate Washington it might as
well be printed on the license plates: It's not the crime, it's
the cover-up.
If the charges against Clinton are true, he could be in the
worst legal spot a President has been in since Nixon was forced
from office. Evidence seeping out in the media could support
charges of perjury, suborning perjury and conspiracy to suborn
perjury, all serious crimes. They could also, as some Republican
Congressmen have begun to declare, rise to the level of the
"high Crimes and Misdemeanors" the Constitution requires for
impeachment. Other players in this drama may also be in legal
trouble, including Clinton adviser Vernon Jordan, Lewinsky
herself and even White House turncoat Linda Tripp. But
obstruction-of-justice cases are notoriously hard to prove, and
it isn't clear prosecutors would have the evidence they need. It
is also uncertain whether the Constitution even permits criminal
charges to be brought against a sitting President. Impeachment
is a possibility, but it is a drastic step and would not be
invoked lightly.
The simplest charge to emerge against Clinton is that he
perjured himself at his deposition in Paula Jones' civil suit
when he reportedly denied having an affair with Lewinsky. But
this turns out not to be a simple charge at all. "It's like
Nixon used to say: Perjury is a tough rap to prove," says Duke
law professor Sara Sun Beale. Much would depend on the precise
words Clinton used in his deposition, and he has proved adept at
phrasing answers with lawyerly attention to detail. The
statement, "There is no sexual relationship," for example, could
let him off the hook if there was an affair in the past that is
now over, or if he succeeded with a claim that oral sex did not
constitute a "sexual relationship."
Lewinsky has reportedly denied the affair in a sworn affidavit
given to Starr, which he is now using as a lever. If he is able
to "flip" her by threatening to bring criminal charges against
her, it would set up a "he said, she said" standoff, with an
uncertain outcome. But if she sticks to her denial--and says any
claims of an affair on Tripp's tapes were just talk--Starr might
have a difficult time. Of course, any tapes of Clinton leaving a
message on Lewinsky's answering machine, if they exist, might
help Starr. He could also try to prove the affair through
circumstantial evidence like White House visitor logs, gifts
and--perhaps more scientifically--a dress that reportedly has a
semen stain from Clinton, which could be subjected to DNA
testing. But what might seem to be the strongest evidence,
Tripp's tapes of Lewinsky, would very probably be inadmissible
as hearsay in a case against Clinton.
Clinton, Jordan and Lewinsky could all be charged with suborning
perjury--encouraging a witness to lie under oath--and
obstruction of justice. Lewinsky has reportedly said on tape
that Clinton and Jordan tried to get her to lie about the
alleged affair. Both men have denied it. Here too, much depends
on whether Lewinsky testifies against them. Starr might have
trouble getting a conviction for suborning perjury if all the
principals agree it didn't happen. And again, much would turn on
context and precise words. If the two men just gave her general
advice to be discreet--not advising her about what to say in a
deposition--it would be perfectly legal. Even if they were
referring to the deposition, it would depend on how specific the
advice to misrepresent the truth was. "It's not suborning
perjury to say you shouldn't volunteer something," says
Northwestern University law professor Paul Robinson. There are
reports that Lewinsky said on tape that the President told her,
"There is no evidence, so you can deny, deny, deny." But you are
allowed to urge a witness to deny something that is untrue. And
Clinton's lawyers could argue something got lost in Lewinsky's
casual paraphrase of his remarks.
Suborning perjury, or at least conspiring to, may be the
strongest charge against Lewinsky. Starr reportedly has a set of
written "talking points," which appear to have been written by a
lawyer, that Lewinsky used to urge Tripp to tailor her testimony
to protect Clinton. That could be conspiracy to suborn perjury.
This talking-points document is already being touted as Starr's
strongest weapon to force Lewinsky to cooperate in a case
against Clinton.
Starr could also possibly pursue an array of conspiracy charges.
If Clinton worked through Jordan or another intermediary to get
Lewinsky to lie, as has been alleged, it could be conspiracy to
suborn perjury or obstruct justice. The same would be true if
Clinton and Jordan discussed getting Lewinsky a job in exchange
for her false testimony, or if anyone inside the White House or
out helped her prepare the talking points for Tripp.
Any number of other violations of law could end up in court
before it's all over. Tripp may have broken Maryland law if she
taped Lewinsky without her consent. Clinton may have sexually
harassed Lewinsky, though it seems unlikely. "It appears Clinton
didn't force her into it and that the relationship wasn't
unwelcome," says Mary Coombs, a University of Miami law
professor. Finally, if any of the accounts of what occurred that
have leaked out prove untrue, Lewinsky, and conceivably even
Clinton, could turn the tables and sue for defamation.
The U.S. Supreme Court ruled for the first time last year, in
Paula Jones v. William Clinton, that a President can be sued in
a civil matter. Some legal scholars read into that decision a
willingness to make the President answerable to criminal
prosecutions as well. But others argue that the Founding Fathers
intended the Impeachment Clause to be the only mechanism for
prosecuting a President. As a practical matter, Starr is more
likely to present evidence of illegal activity by Clinton to
Congress for impeachment proceedings than to a federal court for
trial.
The drumbeat for impeachment hearings has already begun. "It
will be very hard to resist the impetus" for hearings, says
House Judiciary chair Henry Hyde. The process starts with a
congressional investigation. It takes a majority vote of the
House of Representatives to impeach, and if the vote carries, a
trial is conducted by the Senate. A two-thirds vote is required
to convict, which would cause the President to be removed from
office. Andrew Johnson is the only President ever impeached, and
the Senate failed to convict him. In the only other close call,
Nixon resigned at the height of Watergate before the House could
vote on impeachment.
Though the Constitution doesn't define "high Crimes and
Misdemeanors," there is little doubt that the worst of the
obstruction-of-justice and perjury charges against Clinton, if
true, would qualify. But Clinton's accusers would have the same
difficulties in proving obstruction of justice at an impeachment
that Starr would have in court. It seems unlikely, in any case,
that C-SPAN will be carrying a Clinton impeachment anytime soon.
If it got to that point, he would be under powerful pressure to
step down. "The Democrats would force the President out before
it got that far," says George Washington University law
professor Stephen Saltzburg. "They would not allow him to take
the party down with him." The truth will likely emerge soon.
"This is not Iran-contra or Watergate--it's not that
complicated," notes Saltzburg. No, it's not. When a fuller
picture emerges, Clinton's case will be decided in the court of
public opinion long before it finds its way into a court of law.
Perjury
Lying under oath in a court of law, an affidavit, a deposition
or any other official proceeding
For Example If Clinton lied during his deposition in the Paula
Jones sexual-harassment case about his alleged sexual
relationship with Lewinsky
Suborning Perjury
Encouraging a witness to lie under oath in a court of law, an
affidavit, a deposition or any other official proceeding
For Example If Clinton asked Monica Lewinsky to lie about their
relationship in her sworn affidavit in the Paula Jones case
Obstruction Of Justice
Impeding law enforcement, courts and others officially charged
with the administration of justice
For Example If Clinton intimidated Lewinsky into lying or
withholding testimony
Conspiracy To Suborn Perjury
An alliance between two or more people to encourage a witness to
lie under oath in an official proceeding
For Example If Clinton asked Jordan to tell Lewinsky to lie at
her deposition in the Paula Jones case
Sexual Harassment
Employment discrimination that can include sexual advances,
requests for sexual favors and other verbal or physical
overtures of a sexual nature
For Example If Clinton made sexual advances toward Lewinsky
against her wishes while she was employed at the White House
Impeachment
A majority vote by the House that a federal official should be
tried in the Senate for treason, bribery or "other high Crimes
and Misdemeanors"
For Example If the House votes to send the matter of Clinton's
alleged obstruction of justice to the Senate for trial
|