10/23/2005

Daily Kos :: Comments IOKIYAR: The Perjury Edition

Hold The Phone Here - by PJBurke on Sun Oct 23, 2005 at 04:56:27 PM CDT

It may have become an accepted canard that "Clinton commited perjury," but would it make a difference to anyone here if it could be shown -- not just plausibly, but persuasively -- that Clinton never did, in fact, commit perjury?

It does make a difference -- a HUGE difference -- to me. It changes the entire color and stench of what is going on now... for the Republicans are using this as a cynical opportunity to re-sell their old lies while pooh-poohing their newest ones.

There may be many here who are already persuaded that the charge of perjury always lacked merit. For those who are not yet so persuaded, below is the actual rebuttal -- just those specific to the charges of perjury -- provided by Clinton's defense team to the Referral of the Office of Independent Counsel (OIC). No one has argued it more persuasively or completely than this.

From CLINTON'S SECOND REBUTTAL. INITIAL RESPONSE TO REFERRAL OF OFFICE OF INDEPENDENT COUNSEL
(Time Magazine Online Repository)

[Important longer sections set off in BlockQuote, shorter ones in bold]

Allegation I -- Perjury in January 17, 1998, Deposition

We begin our response to the OIC's charge that the President committed perjury in his January 17 deposition in the Jones case with these simple facts: the President's relationship with Ms. Lewinsky was wrong; he admitted it was wrong; and he has asked for the forgiveness of his family and the American people. The perjury charges in the Referral in reality serve one principal purpose for the OIC -- to provide an opportunity to lay out in a public forum as much salacious, gratuitous detail as possible with the goal of damaging the President and the presidency.

The OIC begins its catalogue of "acts that may constitute grounds for impeachment" with the allegation that "[t]here is substantial and credible information that President Clinton lied under oath as a defendant in Jones v. Clinton regarding his sexual relationship with Monica Lewinsky." Acts at 5. The OIC contends that, for legal reasons, it must discuss its allegations of sexual activity in detail and then goes out of its way to supply lurid detail after lurid detail that are completely irrelevant to any legal claim, obviously hoping that the shock value of its footnotes will overcome the absence of legal foundation for the perjury allegation.

In reaching any fair judgment as to the merits of the OIC's claim that the President's testimony establishes a basis for impeachment, it is important to understand a few additional points. First, the OIC barely acknowledges the elements of perjury, including, in particular, the substantial burden that must be met to show that the alleged false statements were made "knowingly," Preliminary Memorandum at 52, or that they were material to the Jones proceeding.


First, the OIC barely acknowledges the elements of perjury, including, in particular, the substantial burden that must be met to show that the alleged false statements were made "knowingly," Preliminary Memorandum at 52, or that they were material to the Jones proceeding.

Second, the OIC ignores the careful standards that the courts have mandated to prevent the misuse of perjury allegations. As was set out in detail in our Preliminary Memorandum, pages 51-64, literally true statements cannot be the basis for a perjury prosecution, even if a witness intends to mislead the questioner. Likewise, answers to inherently ambiguous questions cannot constitute perjury. And, normally, a perjury prosecution may not rest on the testimony of a single witness.

Third, by selectively presenting the facts and failing to set out the full context of the answers that it claims may have been perjurious, the OIC has presented a wholly misleading picture. This tactic is most pronounced in the OIC's astonishing failure to set out the initial definition of "sexual relations" presented by the Jones lawyers at President Clinton's deposition, two parts of which were eliminated by Judge Wright as being "too broad."4 The OIC also fails to mention that the Jones lawyers were fully able, and indeed were invited by President Clinton's counsel, to ask the President specific questions about his sexual encounters, but they chose not do so. See Preliminary Memorandum at 65.


... the OIC has presented a wholly misleading picture. This tactic is most pronounced in the OIC's astonishing failure to set out the initial definition of "sexual relations" presented by the Jones lawyers at President Clinton's deposition

These surprising and substantial gaps in the Referral, and the OIC's purposefully incomplete presentation reflect the extreme weakness of the OIC's contention that the President's deposition testimony about "sexual relations" may constitute perjury.

As any fair prosecutor would acknowledge, what the OIC dismisses as a mere "semantical defense" is, in fact, reflective of the great care the courts have taken to ensure that a witness is not charged with perjury except when the government can demonstrate a clear intent to provide false testimony. Thus, in any ordinary prosecutor's office, and surely in the chambers of the House Judiciary Committee, the definitions of such terms as "sexual affair," "sexual relations," and "sexual relationship" would be seen as vital to a determination whether some violation of law had occurred.5 The burden that must be met by the OIC extends beyond showing that the President was wrong on the semantics, it must also show that, because perjury is a specific intent crime, he knew he was wrong and intended to lie -- something that the OIC could not begin to demonstrate. In fact, all the OIC has is a witness who gave narrow answers to ambiguous questions.

Lawyers' arguments, however well taken, should not obscure the President's admission that his relationship with Ms. Lewinsky was wrong and his acceptance of responsibility for his conduct. But one example will suffice to demonstrate the inherent weakness of the OIC's claim. The OIC argues that oral sex falls within the definition of sexual relations and that the President therefore lied when he said he denied having sexual relations. It is, however, the President's good faith and reasonable interpretation that oral sex was outside the special definition of sexual relations provided to him. The OIC simply asserts that it disagrees with the President's "linguistic parsing," and that reasonable people would not have agreed with him. Acts at 30. This simply is not the stuff of which criminal prosecutions -- and surely impeachment proceedings -- are made.

one example will suffice to demonstrate the inherent weakness of the OIC's claim. The OIC argues that oral sex falls within the definition of sexual relations and that the President therefore lied when he said he denied having sexual relations. It is, however, the President's good faith and reasonable interpretation that oral sex was outside the special definition of sexual relations provided to him.

What is left, then, is a disagreement about the very specific details of certain encounters that the President has acknowledged were improper -- the very "oath against oath" that the law and experience reject as a basis for a prosecution, because a perjury conviction cannot rest on simple inconsistencies and memory disparities between only two witnesses.

Instead of acknowledging the well-settled legal limits on perjury cases, or grappling with the important limitations on perjury prosecutions, the OIC has chosen to fill its report with unnecessary and salacious sex -- details that cause pain and damage for absolutely no legitimate reason.

Allegation II -- Perjury in August 17, 1998, Grand Jury Testimony

In its second allegation, the OIC contends that "[t]here is substantial and credible information that President Clinton lied under oath to the grand jury about his sexual relationship with Monica Lewinsky." Acts at 40. In particular, the OIC alleges that the President committed perjury three times: (1) when he testified that he believed oral sex was not covered by any of the terms and definitions for sexual activity used at the Jones deposition; (2) when he contradicted Ms. Lewinsky's grand jury testimony on the question whether the President touched Ms. Lewinsky's breasts or genitalia during their sexual activity, since "[t]here can be no contention that one of them has a lack of memory or is mistaken," id.; and (3) when he testified to a purportedly false date on which his relationship with Ms. Lewinsky commenced. None of these "allegations" makes out a prima facie case of perjury, and none can possibly constitute a "ground" for impeachment.

1. The OIC first claims that the President testified falsely that he did not believe oral sex to be covered by any of the terms and definitions for sexual activity used at the Jones deposition. As noted in response to the first allegation, supra, the terms "sexual affair" and "sexual relationship" are inherently ambiguous and, when used without definition, cannot possibly amount to perjury. The President testified to the grand jury about what he believed those terms mean. Not content to accept his explanation, the OIC makes the extraordinary (and factually unsupported) claim that the President committed perjury before the grand jury by lying not about some fact but about his belief about the meaning of certain words. The OIC then compounds this error by claiming as perjury the President's explanation of his understanding of the contorted definition of "sexual relations" in the Jones suit, as modified by the court.

...the terms "sexual affair" and "sexual relationship" are inherently ambiguous and, when used without definition, cannot possibly amount to perjury. The President testified to the grand jury about what he believed those terms mean. Not content to accept his explanation, the OIC makes the extraordinary (and factually unsupported) claim that the President committed perjury before the grand jury by lying not about some fact but about his belief about the meaning of certain words.


The OIC charges the President with perjury, saying it is "not credible" that the President believed oral sex fell outside the definition he was given, even though it plainly did...

This claim is quite stunning. The OIC charges the President with perjury, saying it is "not credible" that the President believed oral sex fell outside the definition he was given, even though it plainly did, and even though many commentators and journalists have stated that they believe that the definition of sexual relations in the Jones deposition did not include oral sex (performed on the President). See, e.g., Internight, August 12, 1998 (Cynthia Alksne) ("when the definition finally was put before the president, it did not include the receipt of oral sex."); "DeLay Urges a Wait For Starr's Report," The Washington Times, August 31, 1998 ("The definition of sexual relations, used by lawyers for Paula Jones when they questioned the president, was loosely worded and may not have included oral sex."); "Legally Accurate," The National Law Journal, August 31, 1998 ("Given the narrowness of the court-approved definition in [the Jones] case, Mr. Clinton indeed may not have perjured himself back then if, say, he received oral sex but did not reciprocate sexually."). Despite the fact that several reasonable commentators agree with the President's interpretation, the OIC acts as though the President's interpretation of the definition in the Jones case is both unique and untenable. It is in fact the OIC's theory that is untenable.

It is beyond debate that false testimony provided as a result of confusion or mistake cannot as a matter of law constitute perjury. See United States v. Dunnigan, 507 U.S. 87, 94 (1993); Department of Justice Manual, 1997 Supplement, at 9-69.214. Moreover, if there is any doubt as to the falsity of testimony, the issue must be resolved in favor of the accused. See United States v. Chaplin, 25 F.3d 1373, 1380 (7th Cir. 1994) (the government must prove falsity by direct evidence, and not inferences). The definitions on which the President relied are shared both by dictionaries, see discussion of Allegation I, supra, and by commentators. The OIC's very allegation that the President committed perjury by re-explaining his belief and interpretation to the grand jury is yet another indication of the extent of the OIC's overreaching in this Referral.6

2. The OIC's next charge - that the President testified falsely when he contradicted Ms. Lewinsky's grand jury testimony on the question whether he touched Ms. Lewinsky's breasts or genitalia during their sexual activity -- is substantially identical to the allegation contained in Allegation I, supra, and cannot constitute perjury for the same reason. The critical issue here is not whether the testimony of the President and Ms. Lewinsky differ but whether there is any evidence that the President knowingly and intentionally gave false testimony. It is worthwhile to note, however, the inaccuracy of the OIC's assertion that "[t]here can be no contention that one of them has a lack of memory or is mistaken" about the details of their physical relationship. Acts at 40.

3. The OIC's final allegation here is that the President made a false statement to the grand jury regarding the timing of the beginning of his relationship with Ms. Lewinsky. Whereas the Referral indicates that the President remembers the improper relationship beginning early in 1996, Ms. Lewinsky has apparently testified that it began November 15, 1995. As a legal allegation this claim is frivolous, because the statement by the President regarding the timing of the relationship (mid-November 1995 as opposed to January 1996) was utterly immaterial to the grand jury's investigation. The Supreme Court has held that "there is no doubt that materiality is an element of perjury." Johnson v. United States, _ U.S. _, 117 S. Ct. 1544, 1548 (1997). The test for materiality is whether the statement in question had "a natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed." United States v. Gaudin, 515 U.S. 506, 509 (1995). There is no conceivable way in which any statement by the President with regard to the date (within a few weeks) of the commencement of his relationship with Ms. Lewinsky could possibly have influenced the grand jury, and the OIC has of course not identified how the grand jury was "influenced" by this testimony. The President acknowledged to the grand jury his improper relationship, beginning early in 1996, with Ms. Lewinsky, and his testimony regarding the date that the relationship began cannot possibly have influenced the grand jury in any decision-making function. The mere fact that the OIC would allege perjury as a result of an utterly immaterial statement speaks volumes about the overreaching in the Referral.

The law is precise for a reason: to protect our freedom.

Daily Kos :: Comments IOKIYAR: The Perjury Edition

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