After four years of investigation, President Clinton is finally on trial in a most volatile courtroom on charges that are not charges at all but strong suggestions of wrongdoing.
The case before the House Judiciary Committee, which must decide whether to recommend a full vote on impeachment to members of the House of Representatives, is an extraordinary one. On that, legal scholars and prosecutors agree.
Whether it is viable is another matter. Many prosecutors see Independent Counsel Kenneth Starr’s report as part indictment, part political diatribe, using explicit descriptions of sexual acts to paper over shaky allegations that Clinton engineered a web of lies and obstruction of justice to conceal his affair with White House intern Monica Lewinsky. Those accusations, they say, still rest largely on “he said, she said” testimony.
“In a court of law, I would say this is very, very difficult to prove,” said Richard Phelan, a Chicago lawyer who led the 1988-89 investigation that toppled House Speaker Jim Wright. “Not just somewhat difficult but very difficult to prove.
“The problem is, we’re not in a court of law. We’re in the House of Representatives and the Senate, where whatever they think is a high crime and misdemeanor is a high crime and misdemeanor.”
More Top Picks Best Computer Glasses For Programmers
Phelan recognizes what Starr’s report all but assumes: The case against President Clinton is as much about perception and behavior as it is about crimes committed. In Congress, the president’s behavior and the lies he set in motion may be just as damaging as a finding that those lies meant violating the law. Together, the two may be politically and legally devastating.
“The big breach of faith for the American people was his lying to the public and then his use of the White House staff to reinforce that lie for half a year,” said C. Boyden Gray, who served as White House counsel for President George Bush. “This is abuse of power by an employer with an employee. She (Lewinsky) was given better and better jobs and even given another job when the employer wanted to terminate” the affair.
The main assertion of the report, the grounds for possible impeachment, are 11 accusations: five that the president committed perjury, or lied under oath; five more stating that he obstructed justice; and one alleging that his actions were “inconsistent” with his “constitutional duty to faithfully execute the laws.”
The perjury charges are most easily proved, lawyers say, particularly Clinton’s failure to recall being alone with Lewinsky. He said she brought papers to him on a “couple of occasions” but was vague on the point. Lewinsky, on the other hand, offered graphic details to Starr and the grand jury of 10 sexual encounters with the president, as well as approximately 15 instances in which the two engaged in phone sex.
Perjury, however, is the sort of charge that most big-city prosecutors would tack onto a meatier drug or fraud indictment. In this case, Clinton is accused of lying under oath during a deposition in a sexual-harassment lawsuit brought against him by Paula Jones, a former Arkansas state employee.
The Lewinsky affair came to the attention of Jones’ lawyers last fall, and Lewinsky and Clinton were subpoenaed to give depositions. In his testimony, Clinton denied having sex with Lewinsky. Starr’s report, citing Lewinsky’s graphic testimony, details their relationship. Clinton acknowledged an “inappropriate” relationship with Lewinsky in an Aug. 17 national address.
As bad as that sounds, lawyers say, lying in a civil deposition isn’t uncommon nor is it something that prosecutors attack with vigor. “If you prosecuted every guy who lied in a deposition about something, we’d have half the people in this country locked up,” Phelan said.
Starr’s notion of obstruction of justice might have just as difficult a time before a criminal jury. In one instance, the report accuses Clinton of obstruction by lying about his relationship with Lewinsky to White House staff members, knowing that they would be witnesses before the Starr grand jury and that they would “relay the falsehoods to the grand jury.”
That, said Miami defense lawyer Neal Sonnett, “is a real stretch. That’s a creative theory that I have never seen or heard of in the criminal law.” Sonnett and other lawyers said that case law holds that someone who has committed a crime can lie about it to associates but not be charged with obstruction if those associates then testify about that lie.
Where Clinton may have real trouble is with Starr’s contention that he also obstructed justice by trying to influence the testimony of his secretary, Betty Currie. The president called Currie into his office at 5 p.m. on Jan. 18, a Sunday, the report says. When Currie arrived, the report says, the president “made statements to her regarding his relationship with Lewinsky.
They included: “Monica came to me, and I never touched her, right?” and “She wanted to have sex with me, and I can’t do that.” Currie told the Starr grand jury that she agreed with the president, though she knew that Clinton and Lewinsky “had in fact been alone in the Oval Office and in the president’s study.”
Perhaps the most vulnerable portion of Starr’s report, though, may be his contention that Clinton abused his presidential powers by lying to his staff, his wife and the American public by delaying his appearance before Starr’s grand jury and by invoking executive privilege to keep his close aides from testifying. That last point, in particular, troubled lawyers.
“It suggests that any president who defends himself can be accused of abusing his constitutional authority and obstructing justice,” said Alan Dershowitz, a Harvard Law School professor. “It undercuts entirely the adversary system. I think Ken Starr thinks of himself as a judge rather than a prosecutor here.”
That is undoubtedly what the White House thinks as well. It issued one rebuttal to Starr’s document shortly before the report was publicly available, using it to respond to charges Clinton’s lawyers had not yet seen. On Saturday, the White House issued another response, calling Starr’s conclusions a “hit-and-run smear campaign.”
The White House has attacked Starr’s allegations by elevating the definition of an impeachable offense and undercutting the grand jury’s findings. It described impeachment as a matter of “incomparable gravity” that should be reserved for only the “the gravest executive wrongdoing.” Moreover, it argues that impeachment has long been viewed as a remedy for official wrongdoing that injures society and the body politic, not for private conduct.
Marc Kadish, a Chicago-Kent law professor, said Clinton’s personal behavior and his attempts to cover it up could be viewed by the public as an impeachable offense. “Lying under oath can very easily injure the body politic and it is a public wrong,” Kadish said.
Just what happens with Starr’s allegations, though, is the responsibility of the Congress, not the public. Lawmakers will be watching this weekend to see if voters, who have generally supported Clinton’s work throughout the crisis, react differently now that graphic details have replaced rumors.
Law professors say the Judiciary Committee is unlikely to base any of its actions on Starr’s report alone. More likely, the committee would treat the document as a prosecutor might treat a police report–as a lead to witnesses and other kinds of evidence.
“The Congress doesn’t have to rest just on what Starr gave them,” said John Roberts, a DePaul University law professor and former general counsel to the Senate Armed Services Committee. “They can call witnesses themselves. So I’m not sure that’s a killer argument.”
When they do return to Washington to take up the report, lawmakers will still have to subject Starr’s version of events to their own political interpretation. “Once it goes to Congress, it’s Katie bar the door,” Phelan said. “There is no definition of crimes. It’s whatever the hell they want.”