Truth overlooked in larger-than-life story

Thursday, October 8, 1998

Truth overlooked in larger-than-life story

IMPEACHMENT: Excessive media coverage of Clinton, partisan
bickering distract from issues of perjury, obstruction of
justice

I know, you’re sick of it. But the specter of impeachment that’s
been hovering over Bill Clinton poses serious problems of law,
politics and ethics. In a frequently-asked-questions format that I
hope to use in all my upcoming columns, I’ll try to separate the
true issues of Monica-gate from the partisan squabbling that has
buried them.

Isn’t perjury an impeachable offense?

Yes, but there’s probably no perjury here. Perjury has to be a
lie that turns on a material fact – a piece of information that
could logically influence the outcome of the case. If I’m on trial
for murder and I’m asked what I had for breakfast this morning, and
I say "eggs" when I know I had French toast, that’s not
perjury.

But if I’m asked where I was the night of the murder, and I say
"asleep in bed" when I was really strolling near the scene of the
crime, it could be. Clinton, whom Paula Jones is suing for sexual
harassment, misled lawyers and, later, a grand jury about having
sexual relations with Monica Lewinsky.

Let’s put aside his wrangling over the definition of "sexual
relations" and say he flat-out lied. To call this perjury, you’d
have to argue that Clinton’s consensual relations with Lewinsky
could prove he sought, or had a propensity to seek, non-consensual
relations with Jones. It’s doubtful that any judge would consider a
person’s lawful conduct as part of a "pattern" culminating in
unlawful conduct.

In fact, it’s hard to see any "pattern" here at all, since the
alleged unlawful act (Jones) predated the lawful one (Lewinsky). It
would be like arguing that, since I’ve been doing my laundry at a
certain laundromat for the past year, I must have been the person
who robbed that same laundromat 20 years ago.

Most courts also have restrictions as to whether a defendant’s
prior (or, in this case, future) behavior can be admitted as
evidence at all. The test is whether the information’s prejudicial
nature outweighs its probative value – i.e., whether it’s more
likely to inflame the emotions of the jurors than to prove the
facts of the case.

Even "character" is a delicate issue, because a jury isn’t
supposed to be distracted into convicting a defendant of immorality
rather than of criminality. The Lewinsky affair would be of
questionable value in establishing that Clinton had a tendency to
commit harassment, which is different from an unwelcome
proposition; it would be, however, of considerable value in
establishing that he’s a cad with a roving eye.

The whole point of the Lewinsky investigation has been to
prejudice rather than prove the Jones case, and Kenneth Starr’s
findings would probably have been ruled inadmissible at trial. No
admissibility, no materiality; no materiality, no perjury.

What about obstruction of justice?

Practically speaking, Clinton didn’t "obstruct" anything,
because Jones’ case was too weak to ever reach a jury. As Judge
Susan Webber Wright explained, even if Clinton had told the truth
about his other sexual peccadilloes, it wouldn’t have changed that
Jones failed to demonstrate whether she "was the victim of alleged
quid pro quo or hostile work environment sexual harassment, whether
the President and (state trooper Danny) Ferguson conspired to
deprive her of her civil rights or whether she suffered emotional
distress so severe in nature that no reasonable person could be
expected to endure it."

Now, a person can be prosecuted even for obstructing a case that
gets dismissed independent of his testimony. But it’s likely that
Clinton, who keeps company with sharp lawyers like himself,
anticipated that Jones didn’t have a case, and thus realized he
didn’t have to say anything about Lewinsky. Remember, it was
Clinton who moved for dismissal. His apparent intent was therefore
to avoid embarrassment, not prevent administration of justice. A
gamble, yes. Slippery, perhaps. Criminal, no.

What about failure of moral leadership?

Presidents are elected for political leadership, not moral
leadership. The morality is in the policy. I find Clinton’s bombing
of Sudan a moral abomination infinitely greater than his sexual
dalliances, but that’s a story for another time. Most of those who
argue that Clinton should leave office for "disgracing the
presidency" take issue with him on substantive matters – the
economy, the environment, etc.

Pundits and legislators excuse the personal failings of their
policy allies and condemn those of their policy foes. Rise above
the hypocrisy: don’t pretend moral turpitude is in the same league
as "treason, bribery or other high crimes and misdemeanors."

What are you, some kind of Clinton-lover?

Look, if you don’t like the guy, just say so. I gave up on him a
long time ago myself. But to use impeachment to settle policy
differences would pervert the Constitution.

At the 1787 Constitutional Convention, the Framers originally
wrote "maladministration" instead of "high crimes and misdemeanors"
as grounds for impeachment. James Madison objected and said, "So
vague a term will be equivalent to a tenure during pleasure of the
Senate." The phrase was replaced, but Madison’s warning stands.

In "Impeachment: A Handbook" (1974) the constitutional scholar
Charles Black, though a lifelong Nixon foe, recognized that this
process should be reserved for the gravest offenses: "Certainly the
phrase ‘high crimes and misdemeanors,’ whatever its vagueness at
the edges, seems absolutely to forbid the removal of a president on
the grounds that Congress does not on the whole think his
administration of public affairs is good." Unable to accept that
they lost two elections fair and square, the anti-Clinton forces
seek to hound him from office with trumped-up charges.

It’s important to be vigilant about the legal issues here,
because the same people saying "it’s time for Clinton to go" have
been trying to "get" him since he took office and would profit from
his demise.

Starr’s conflicts of interest have been well-documented for
years. He used his role as "independent" Whitewater counsel to
investigate members of the Resolution Trust Corporation, which
happened recently to have sued Starr’s law firm, Kirkland &
Ellis.

He also continues to shill for the tobacco industry, the
school-voucher lobby and other organizations to which the Clinton
administration has been unfriendly.

For conservatives in Congress, the Lewinsky "scandal" is a
convenient distraction from the real business of making policy, or
not.

And the big winner is the corporate-controlled media machine,
which must be fed with information – any information – 24 hours a
day. There are plenty of salient issues out there to report, some
of which I’ll be talking about in the coming weeks.

Read the papers, albeit with a grain of salt … and beyond the
front page.Adam Komisaruk

Komisaruk, a lecturer in the English department, can be reached
at [email protected]. His column appears on alternate
Thursdays.

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