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The President on Trial: Sifting Through the Evidence
By Jon Bonné
Court TV
Last January, Monica Lewinsky signed an affidavit which has come to imperil the Clinton presidency. Her affidavit in the Paula Jones sexual harassment suit stated that she never had a sexual relationship with President Clinton.
Only ten days later, Lewinsky's denial was cited by Clinton's lawyer, Robert Bennett, while Clinton was being deposed in the Paula Jones litigation.
Bennett's assertion — that there was no point in asking Clinton about Lewinsky since she herself had denied an affair — sparked the firestorm which has led to Clinton's Senate trial.
Roughly one year later, Americans are left with a mountain of evidence — depositions, grand jury transcripts, e-mails, telephone tapes, even DNA results of a stain on a certain blue dress — that would overwhelm even the most dogged sleuth.
Although the Senate trial is now underway, many do not understand what, exactly, the charges are against the President and what the evidence is to support or rebut them.
Here then, is a relatively simple guide to the charges and the evidence. For those who may be intimidated even by this cursory guide, it might be wise to digest it in small doses. Refer to it as the charges are discussed individually — which is exactly how the Senate, acting as a jury, will try to sort through the impeachment thicket.
Article I
William Jefferson Clinton swore to tell the truth, the whole truth, and nothing but the truth before a Federal grand jury of the United States. Contrary to that oath, William Jefferson Clinton willfully provided perjurious, false and misleading testimony to the grand jury concerning: (1) the nature and details of his relationship with a subordinate government employee; (2) prior perjurious, false and misleading testimony he gave in a Federal civil rights action brought against him; (3) prior false and misleading statements he allowed his attorney to make to a Federal judge in that civil rights action, and (4) his corrupt efforts to influence the testimony of witnesses and to impede the discovery of evidence in that civil rights action.
The first article of impeachment is remarkably vague. Because it doesn't point to specific testimony in Clinton's grand jury appearance, it is unclear precisely which of the president's statements prosecutors believe are false. Some likely specifics on each of the four points:
Charges 1 & 2: What is Sex?
William Jefferson Clinton willfully provided perjurious, false and misleading testimony to the grand jury concerning...the nature and details of his relationship with a subordinate government employee...[and] prior perjurious, false and misleading testimony he gave in a Federal civil rights action brought against him.
These charges center on Clinton's grand jury testimony about what he said in the Jones case. One major issue arising from his grand jury appearance is the now-infamous prepared statement he invoked 19 times during his testimony in the White House Map Room. The statement in full:
"When I was alone with Ms. Lewinsky on certain occasions in early 1996 and
once in early 1997, I engaged in conduct that was wrong. These encounters
did not consist of sexual intercourse. They did not constitute sexual
relations as I understood that term to be defined at my January 17th, 1998
deposition [in the Jones case.] But they did involve inappropriate intimate contact. These inappropriate encounters ended, at my insistence, in early 1997. I also had occasional telephone conversations with Ms. Lewinsky that included
inappropriate sexual banter."
GOP members of the House Judiciary committee believe this statement is "half-true, incomplete and misleading." Moreover, they assert, the fact that the statement was prepared prior to Clinton's grand jury appearance reveals "an intent to mislead" the grand jury.
Democrats counter that Clinton's use of the statement was simply a way for him to give a consistent explanation of what he understood "sexual relations" to mean.
The statement is an abbreviated and non-substantive view of Clinton and Lewinsky's long and tangled relationship. However, it does omit the three 1995 sexual encounters between Lewinsky and the president documented in the Starr report. Factual quibbles notwithstanding, the foundation of Clinton's statement is the well-worn argument that his liaisons with Lewinsky did not constitute "sexual relations."
(For those who care, here's the definition of sexual relations used
during the Jones deposition: "a person engages in 'sexual relations'
when the person knowingly engages in or causes...contact with the
genitalia, anus, groin, breast, inner thigh, or buttocks of any person with
an intent to arouse or gratify the sexual desire of any person.")
It will be up to the Senate to decide whether Clinton's frequent invocation of the statement before the grand jury was perjurious or misleading. More important perhaps, is that so far, there is no known witness who can testify about Clinton's intent in the preparation of — or in its citing before the grand jury — his opaque characterization of his relationship with Lewinsky.
Also likely to face scrutiny is Clinton's claim that because his sexual contact with Lewinsky was one-way (her performing acts on him) and not intended for mutual gratification, it wouldn't have qualified as "sexual relations," at least under the Jones deposition definition.
While House prosecutors view this as a use of "twisted interpretations that a reasonable person would not draw" and an evasion of his "obligation to tell the truth," Democrats claim that Clinton was fully aware of the potential
implications of that definition and had told the literal truth. To back up their claim, they pointed to his admission, under the same definition, that he had sexual relations with Gennifer Flowers. Such candor, they say, is proof that Clinton's claims he never had sexual relations with Lewinsky were rational and forthright.
But never mind the legal jumbo, is all of this perjury?
The White House points to a 1973 Supreme Court ruling, Bronston v. United States, which defines perjury narrowly. In Bronston, Clinton's lawyers maintain, the court ruled that technically accurate testimony can't be perjurious, "no matter how much the witness may have intended by his answer to mislead."
In fact, the high court determined that it's the responsibility of the
questioner — in Clinton's case, prosecutors working for Starr —
to ask questions that don't leave wiggle room. However, Bronston does not remain the sole standard for perjury, and as some commentators have recently pointed out, appellate courts have found holes in the 1973 decision.
In the end, these precedents may mean little. The articles of impeachment are not a criminal indictment, and an impeachment trial is not a trial bound by legal precedent.
Charge 3: Speak No Evil, Hear No Evil?
William Jefferson Clinton willfully provided perjurious, false and misleading testimony to the grand jury concerning...prior perjurious, false and misleading testimony he gave in a Federal civil rights action brought against him.
Perhaps the most salient evidence regarding the third charge in Article I involves Clinton's silence during one specific moment during the Paula Jones deposition.
This particular moment in the deposition occurred as follows: Jones' lawyers
asked if Clinton and Lewinsky ever went "down the hallways from the Oval
Office to the private kitchen" nearby. Clinton lawyer Bob Bennett interrupted, objected to the "innuendo in the question" and questioned the "good faith" of Jones' lawyers in asking it.
Jones' lawyers, he reminded U.S. District Judge Susan Webber Wright (who was presiding over the matter), knew that Lewinsky's affidavit said "that there is absolutely no sex of any kind in any manner, shape or form, with President Clinton."
(In the affidavit, the world's most famous intern said: "I have never had a sexual relationship with the President, he did not propose that we have a sexual relationship, he did not offer me employment or other benefits in exchange for a sexual relationship, he did not deny me employment or other benefits for rejecting a sexual relationship.")
Clinton sat silently during Bennett's objection and the exchange that followed
between Bennett and Judge Wright.
When asked during his grand jury testimony about this exchange, Clinton
said, "I'm not even sure I paid much attention to what he was saying. I
was thinking, I was ready to get on with my testimony here and they were
having these constant discussions all through the deposition. But that
statement in the present tense, at least, is not inaccurate, if that's what
Mr. Bennett meant."
And when asked if he ought to have corrected Bennett's statement, Clinton responded, "Mr. Bennett was representing me. I wasn't representing him. And I wasn't even paying much attention to this conversation." This was followed by a long harangue against the tactics of the Jones lawyers, and his insistence that it was not his "responsibility to volunteer a lot of information."
Finally, when asked if he had a responsibility to ensure the judge clearly understood the facts, he told grand jurors that he didn't think he "ever focused" on Bennett's statements until he started preparing for his grand jury appearance. At the time, Clinton insisted, "that whole argument just passed me by. I was a witness. I was trying to focus on what I said and how I said it."
Clinton's statement regarding the tense of Bennett's words ("is absolutely no sex" versus "was absolutely no sex") is essentially accurate, though it is the exact sort of linguistic parsing for which he has been frequently criticized.
However, according to video of Clinton's testimony, the president appears to be attentively watching Bennett, which tends to undermine his statement that he wasn't paying attention. House prosecutors have focused on Clinton's apparent rapt gaze as evidence that his claim he "wasn't even paying much attention" was false.
Only the president knows his precise state of mind at that very moment, of course, and his lawyers could argue that, despite Clinton's seemingly keen interest, the president truly wasn't concentrating on what Bennett said.
Again, to reach the essence of all of this, a dash of common sense may help. Does any client have the obligation to correct their lawyer when they know the lawyer is lying to a federal judge? And is that obligation even more powerful when the client happens to be the President of the United States? Or is this obligation vanquished when the lawyer, although inaccurate, couches his remarks in the present tense?
Charge 4: A Man of Influence?
William Jefferson Clinton willfully provided perjurious, false and misleading testimony to the grand jury concerning...his corrupt efforts to influence the testimony of witnesses and to impede the discovery of evidence in that civil rights action.
Days after his Jones deposition, Clinton allegedly met with presidential secretary Betty Currie.
He allegedly said several things to her, including:
- "You were always there when she [Lewinsky] was there, right? We were never
alone." (Those sentences have appeared both together and individually.)
- "You could see and hear everything. " (Alternately, "You can see and hear
everything, right?")
- "Monica came on to me, and I never touched her, right?"
- "She wanted to have sex with me and I couldn't do that."
When asked why he said such things, Clinton told the grand jury, "I was trying to figure out what the facts were. I was trying to remember."
Currie told grand jurors his remarks were "more like statements than questions."
There is nothing at this point to illuminate the conversation besides Currie and Clinton's recollections. However, as Republicans have repeatedly suggested, it could be difficult to understand why he would pose questions that, if answered affirmatively, allegedly would be false.
If Clinton was honestly trying to have this conversation with Currie to refresh his recollection of his relationship with Lewinsky, his claim to the grand jury is true. If he used the questions to hint to Currie what he hoped she might tell anyone who asked, his testimony on this point would be false. (It would also be evidence of obstruction, but that's covered in Article II.)
Additional testimony from Currie could be crucial in establishing just what Clinton's intentions were in this conversation.
Clinton also told the grand jury that, shortly after the Lewinsky story
broke in January 1998, he "said things that were true" to his aides about
his relationship with Lewinsky, though he admitted they "may have been
misleading."
One of the most salient statements came during a January 21, 1998 conversation he had with White House aide Sidney Blumenthal .
Clinton told Blumenthal about a conversation earlier in the day with political adviser Dick Morris, according to Blumenthal's own grand jury testimony. Morris had told Clinton that "Nixon could have survived Watergate if he had gone on television...and got it all out in the beginning."
"What have you done wrong?" asked Blumenthal in response.
"Nothing, I haven't done anything wrong," replied the president.
"Well then, that's one of the stupidest things I've ever heard. Why would
you do that if you've done nothing wrong?"
Another statement came during a meeting with then-Chief of Staff Erskine
Bowles and then-Deputy Chief of Staff John Podesta. According to the two
men, Clinton said that "this story is not true," that he "had not had a
sexual relationship with [Lewinsky] and that he never asked anybody to lie." And, he added "when the facts come out," his two aides would "understand."
A careful reading of their conversations yields little. Was Clinton's relationship with Lewinsky "wrong," thereby making his denial to Blumenthal untrue? Possibly. (He publicly admitted the relationship was wrong in his televised speech after his grand jury testimony, but he wasn't under oath.) And while his statements to Podesta and Bowles were arguably false, Clinton never said that everything he told his aides was true.
His motives in saying such things to White House staffers may be questionable, but his testimony is vague enough that House prosecutors will have a hard time proving he lied about these conversations to the grand jury.
In Sum...A Man of Honor?
On August 17 last year, Clinton described to the Starr grand jury how he acted
during the Paula Jones deposition: "I was not trying to be particularly helpful
to them, and I didn't think I had an obligation to be particularly helpful
to them."
But did he take the same tack during his grand jury testimony? And if so, did an attempt to be unhelpful edge into outright lies?
Certainly, the president's lawyers will argue that his grand jury testimony was indeed as fully truthful as he could make it.
When questioned carefully by Associate Independent Counsel Solomon
Wisenberg at the beginning of his testimony, Clinton said, "I have sworn an oath to tell the grand jury the truth, and that's what I intend to do." On the other hand, his tone throughout the grand jury session indicated that he was not pleased with the proceedings or with the lines of questioning. Several of his exchanges with prosecutors became tense. It is probably safe to say he would rather have not been there.
The overall message he conveyed in the Jones deposition was: he knew
Lewinsky, they'd met before, she might have given him a few gifts, but
nothing sexual ever occurred between them. Though the overall impression
may have been misleading, he and his lawyers have continued to insist that
the individual responses were not false. Even his denial of sexual
relations and a sexual relationship with Lewinsky, they have claimed, were
not false when considered in light of what he claimed was his understanding
of the definition of "sexual relations" provided to him at the time.
Expect prosecutors to contend that, when the president's grand jury testimony is viewed as a whole, he treated his grand jury questioners the same way he did the Jones lawyers: offering answers that gave an impression of events very different from how they actually happened.
In fact, prosecutors maintained in a pre-trial brief that "[e]vents and words that may seem innocent or even exculpatory in a vacuum may well take on a sinister, or even a criminal connotation when observed in the context of the whole plot."
Not only will senators be forced to consider specific bits of testimony, they will also likely consider his testimony as a whole and debate whether it was intended to mislead prosecutors and obfuscate the truth.
Their task will be significantly different from a jury deliberating on a perjury charge.
As White House lawyers have pointed out, the 1973 Supreme Court Bronston ruling gives witnesses an out to give misleading testimony so long
as the individual statements are true. That standard is not uniformly accepted, but it would help make a case that Clinton did not commit perjury.
Still, as law professor Charles Black, Jr. pointed out in his 1974 treatise
on impeachment, "the limitation of impeachable offenses to those offenses
made generally criminal by statute is unwarranted — even absurd."
Black, whose words have been invoked by both sides in this case, suggested a better way to define "high Crimes and Misdemeanors," one which would invoke three standards applicable to the defined impeachable crimes of bribery and treason: they could be "offenses (1) which are extremely serious, (2) which in some way corrupt or subvert the political and governmental process, and (3) which are plainly wrong in themselves to a person of honor or to a good citizen, regardless of the words on the statute books."
As Black makes clear, even the most deft legal parsing may not help Clinton. Should they choose such a definition of impeachable offenses, all the senators have to do is determine that for a "person of honor" to behave this way in legal proceedings is wrongdoing enough.
Article II
In his conduct while President of the United States, William Jefferson Clinton, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed, and impeded the administration of justice, and has to that end engaged personally, and through his subordinates and agents, in a course of conduct or scheme designed to delay, impede, cover up and conceal the existence of evidence and testimony related to a Federal civil rights action brought against him in a duly instituted judicial proceeding.
The means used to implement this course of conduct or scheme included one or more of the following acts:
(1) On or about December 17, 1997, William Jefferson Clinton corruptly encouraged a witness in a Federal civil rights action brought against him to execute a sworn affidavit in that proceeding that he knew to be perjurious, false and misleading.
(2) On or about December 17, 1997, William Jefferson Clinton corruptly encouraged a witness in a Federal civil rights action brought against him to give perjurious, false and misleading testimony if and when called to testify personally in that proceeding.
(3) On or about December 28, 1997, William Jefferson Clinton corruptly engaged in, encouraged, or supported a scheme to conceal evidence that had been subpoenaed in a Federal civil rights action brought against him.
(4) Beginning on or about December 7, 1997, and continuing through and including January 14, 1998, William Jefferson Clinton intensified and succeeded in an effort to secure job assistance to a witness in a Federal civil rights action brought against him in order to corruptly prevent the truthful testimony of that witness in that proceeding at a time when the truthful testimony of that witness would have been harmful to him.
(5) On January 17, 1998, at his deposition in a Federal civil rights action brought against him, William Jefferson Clinton corruptly allowed his attorney to make false and misleading statements to a Federal judge characterizing an affidavit, in order to prevent questioning deemed relevant by the judge. Such false and misleading statements were subsequently acknowledged by his attorney in a communication to that judge.
(6) On or about January 18 and January 20-21, 1998, William Jefferson Clinton related a false and misleading account of events relevant to a Federal civil rights action brought against him to a potential witness in that proceeding, in order to corruptly influence the testimony of that witness.
(7) On or about January 21, 23 and 26, 1998, William Jefferson Clinton made false and misleading statements to potential witnesses in a Federal grand jury proceeding in order to corruptly influence the testimony of those witnesses. The false and misleading statements made by the William Jefferson Clinton were repeated by the witnesses to the grand jury, causing the grand jury to receive false and misleading information.
In all of this, William Jefferson Clinton has undermined the integrity of his office, has brought disrepute on the Presidency, has betrayed his trust as President, and has acted in a manner subversive of the rule of law and justice, to the manifest injury of the people of the United States.
Wherefore, William Jefferson Clinton, by such conduct, warrants impeachment and trial, and removal from office and disqualification to hold and enjoy any office of honor, trust or profit under the United States.
Unlike Article I, this article offers specifics: seven particular actions that — alone or together — allegedly show the president obstructed justice. The accusatory language of the second article, which claims that Clinton "prevented, obstructed, and impeded the administration of justice," echoes the federal obstruction statute, which specifies that anyone who "endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished."
Those seven specific acts, it alleges, constitute "a course of conduct or
scheme designed to delay, impede, cover up and conceal" the Lewinsky matter:
Charges 1 & 2: Greasing the Wheels?
(1) On or about December 17, 1997, William Jefferson Clinton corruptly encouraged a witness in a Federal civil rights action brought against him to execute a sworn affidavit in that proceeding that he knew to be perjurious, false and misleading.
(2) On or about December 17, 1998, William Jefferson Clinton corruptly encouraged a witness in a Federal civil rights action brought against him to give perjurious, false and misleading testimony if and when called to testify personally in that proceeding.
Clinton repeatedly told the grand jury that he never asked anybody,
including Lewinsky, to lie. Lewinsky told the grand jury (in a comment
footnoted in the Starr report) that "no one ever asked me to lie and I was
never promised a job for my silence."
But, according to Article II, Clinton allegedly "encouraged" Lewinsky to file a false affidavit in the Paula Jones case and to give "perjurious, false and misleading" testimony if asked to testify.
This encouragement allegedly occurred during a December 17, 1997 late-night phone call between Clinton and Lewinsky.
In the course of their call, Lewinsky said, they discussed her name appearing on the witness list in the Jones case. Clinton apparently suggested to her, "Well, maybe you can sign an affidavit," and, according to Lewinsky, told her that it would help her avoid testifying in person.
The obvious problem with the allegation is that, beyond what's already documented in their testimony, only Clinton and Lewinsky can say for sure exactly what transpired during this conversation. Moreover, most of Lewinsky's statements about the call, while not quite contradictory, are effectively self-cancelling.
For example, she told the grand jury that Clinton reminded her about their previous ruses to hide their relationship, specifically suggesting to her, "You can always say you were coming to see Betty or that you were bringing me letters." But she insisted she didn't know whether it came up "before or after the subject of the affidavit."
Clinton told the grand jury he could "not recall saying anything like that in connection with her testimony."
Lewinsky said she understood, after that conversation, that her affidavit might need to range anywhere from "mentioning...innocuous things" to "maybe having to deny any kind of a relationship." Still, she insisted, no one told her to lie.
As far as discussing the Jones case during that call, Clinton told the grand
jury, "I said, you have to get a lawyer. And that's all I said. And I
never asked her to lie."
Indeed, nothing in her testimony indicates he asked her to lie outright. It points at best to some sort of subtle hint by Clinton that she should conceal their relationship. But that leaves little concrete evidence of obstruction.
Clinton's guilt on this point would likely rest in any desire he had to
convince Lewinsky to lie, but there is almost no clear evidence regarding his intentions here.
Additional testimony — presumably by Lewinsky — during
the Senate trial might help illuminate this conversation and the
circumstances surrounding it.
Charge 3: The Trail of the Gift Horse
(3) On or about December 28, 1997, William Jefferson Clinton corruptly engaged in, encouraged, or supported a scheme to conceal evidence that had been subpoenaed in a Federal civil rights action brought against him.
Lewinsky met with Clinton on December 28, 1997 in the Oval Office. At this meeting, Clinton allegedly devised a "scheme" to hide from the Paula Jones layers the gifts he gave Lewinsky.
That day, according to Lewinsky, she and Clinton discussed the gifts and her subpoena. (The subpoena contained a request for any gifts Clinton gave Lewinsky, including specific reference to a hat pin.) Lewinsky said she suggested to Clinton, "Maybe I should put the gifts away outside my house somewhere or give them to someone."
The president's response, according to her: "I don't know" or "Let me think
about that."
The hat pin reference "sort of concerned him," she said.
Clinton said he told her that "if they asked her for gifts, she'd have to give them whatever she had," but he also told the grand jury he didn't recall knowing that a specific item (the hat pin) was in the subpoena.
He also testified he gave her a bit of seemingly obvious legal advice: "the
way these things work is, when a person gets a subpoena, you have to give
them whatever you have; that's the rule, that's what the law is."
Later that afternoon, according to Lewinsky, Clinton secretary Betty Currie called Lewinsky and said, "I understand you have something to give me," or "The president said you have something to give me." (Currie said Lewinsky called her and asked Currie to hold "some gifts" for her. Phone records show Currie called Lewinsky from her cellular phone, though White House lawyers questioned the timing of the call to Lewinsky.)
Currie then drove over to Lewinsky's Watergate apartment and picked up a box with the gifts, took them home and hid them under her bed.
Unfortunately, Currie's testimony doesn't reveal much. She either didn't know or couldn't remember any of four crucial factors in proving a case against the president: whether Clinton knew Currie was holding the gifts, whether Clinton told Currie about Lewinsky needing the gifts held, whether Currie ever told Clinton about holding the gifts or whether Clinton ever asked Currie to hold the
gifts.
So was this coincidence or collusion? Only two-thirds of the Clinton-Lewinsky-Currie triangle seems to be in place. Clinton and Lewinsky talked about the gifts, but not in a manner (from what both have testified) that clearly indicates he wanted them concealed. Lewinsky gave the gifts to Currie to hold. But did Clinton and Currie have any contact about this?
Part of the story seems to be missing.
If the Senate calls witnesses, Currie is a very likely choice for further examination of this issue.
Charge 4: Escape to New York
(4) Beginning on or about December 7, 1997, and continuing through and including January 14, 1998, William Jefferson Clinton intensified and succeeded in an effort to secure job assistance to a witness in a Federal civil rights action brought against him in order to corruptly prevent the truthful testimony of that witness in that proceeding at a time when the truthful testimony of that witness would have been harmful to him.
At 10:00 a.m. on January 7, 1998 Monica Lewinsky signed her false affidavit in
the Paula Jones case at the offices of her lawyer, Frank Carter. Carter said he told her he planned to hold on to it until he could show it to Clinton's
lawyers.
That same day, Lewinsky went to the offices of presidential friend Vernon
Jordan and showed him the signed false affidavit. Jordan said he told the
president that Lewinsky signed the affidavit and that he was continuing to
help Lewinsky find a job in New York. It would be a "reasonable assumption," Jordan told grand jurors, that Clinton knew the affidavit denied a sexual relationship.
Among other favors, Jordan arranged a second interview for Lewinsky at
MacAndrews & Forbes, Revlon's parent company, when her first didn't go
well. She received a job offer from M & F on January 9, 1998, two days after she signed her false affidavit in the Jones case.
Jordan spoke to Clinton that evening. "Monica Lewinsky's going to work
for Revlon," Jordan recalled he told Clinton. "His response was, 'Thank
you very much.'"
During his grand jury testimony, Clinton could not remember anything
specific about those conversations.
Then MacAndrews & Forbes asked for references. Clinton asked then-Chief of
Staff Erskine Bowles to get White House staffer John Hilley to write
Lewinsky a recommendation.
House Republicans insist it is "logical to infer" from the "chain of events" that Clinton tried to maneuver a job-for-silence deal.
But there's scant direct evidence to make the individual links connect to form a solid chain. Jordan helped Lewinsky in her job search and in arranging for her affidavit. Jordan was apparently in communication with the president about both issues. Clinton presumably asked his aides to get Lewinsky a recommendation.
There could be a sinister motive on Clinton's part, but the two actions in question — the job help and the affidavit help — don't really link up. For instance, Jordan's job search for Lewinsky began before Lewinsky filed her Jones affidavit.
Undoubtedly, Jordan's role in l'affaire Lewinsky is murky. But there's no solid proof of collusion between Jordan and Clinton in a job-for-testimony deal. The closest piece of evidence is Lewinsky's claim to Starr's investigators that, during her December 28, 1997 conversation with Clinton, he suggested that "if Lewinsky was in New York the Jones lawyers might not call." But she never discussed this point with the grand jury.
There is also a December 22 car ride during which Lewinsky and Jordan
discussed both the Jones case and her job search. But none of the testimony regarding this car ride illuminates much.
Jordan would be a likely witness to be called by senators, presumably to
elaborate on his — and the president's — involvement in
Lewinsky's affidavit and job search. Lewinsky might also be called to shed
some light on the car ride with Jordan and her knowledge of Clinton's
involvement in either matter.
Charge 5: Speak No Evil, Hear No Evil? (Part II)
(5) On January 17, 1998, at his deposition in a Federal civil rights action brought against him, William Jefferson Clinton corruptly allowed his attorney to make false and misleading statements to a Federal judge characterizing an affidavit, in order to prevent questioning deemed relevant by the judge. Such false and misleading statements were subsequently acknowledged by his attorney in a communication to that judge.
This charge essentially parallels the third part of Article I, but while Article I concerns grand jury testimony, this charge deals with Clinton's actions during the Jones deposition itself.
Briefly: the president sat silently as his lawyer Robert Bennett told Judge
Susan Webber Wright that Lewinsky's affidavit affirmed that "there is absolutely no sex of any kind in any manner, shape or form" between Clinton and
Lewinsky. Though Clinton told grand jurors he wasn't sure he "paid much
attention" to Bennett during this colloquy, the deposition video shows
Clinton apparently looking on intently.
The president also told grand jurors that Bennett was technically accurate in his use of the present tense, the genesis of his infamous hair-splitting about "what the meaning of the word 'is' is."
Clinton stands accused of obstruction through silence. On the facts, Clinton's defense — that he wasn't paying attention, but even if he was, Bennett's statement was literally true — is somewhat difficult to absorb. (He also claimed that Bennett's statement was not testimony and was therefore not "imputable" to him.)
Bennett's statement is factually true (the sexual relationship had ended by that point) and, without getting inside the president's head, it is almost impossible to prove that Clinton was paying attention as Bennett spoke.
Senators will have to decide for themselves of course, but the video seems to contradict Clinton. And his defense, if it is used during the Senate trial, would require his lawyers to claim the following: during this incendiary moment of testimony in the Jones case, when he was confronted with the specific issue of sexual contact with Lewinsky — a matter about which he has been accused at best of splitting legal hairs and at worst of outright lying — he either didn't hear what his lawyer said or saw nothing wrong with Bennett's characterization that no sex took place.
While this might work in a standard obstruction case, House prosecutors may argue that Clinton's behavior during this episode shows that he did not act in a manner befitting his office — by allowing a deceptive pattern of facts
to be presented to a federal judge as truth. That the Senate has no firm burden of proof during his trial does not help the president on this point.
Charge 6: The Four Questions
(6) On or about January 18 and January 20-21, 1998, William Jefferson Clinton related a false and misleading account of events relevant to a Federal civil rights action brought against him to a potential witness in that proceeding, in order to corruptly influence the testimony of that witness.
Another echo of charges from Article I (the fourth part), this charge concerns Clinton's motives during two conversations in January 1998 with secretary Betty Currie.
On January 18, 1998 Clinton made what is generally counted as four statements to Currie. Clinton claimed these were questions, that he was trying to refresh his memory about his and Lewinsky's interludes. Currie insisted his words were "more like statements than questions." However, Currie insisted she felt no pressure to agree with the president.
Prosecutors take issue with the tone of Clinton's statements and wonder why he would ask allegedly false questions if he wanted truthful answers.
But Article II never mentions Currie by name — it calls her a "potential witness" in Starr's investigation. That phrasing is the basis for one of Clinton's repeated defenses: the president couldn't possibly have known at the time that Currie would be called as a witness. Therefore, the argument follows, he couldn't have been trying to influence her testimony because he didn't know she would ever have to testify. (Internet columnist Matt Drudge first mentioned the Lewinsky story during a January 18, 1998 appearance on ABC's "This Week." Full reports about the Starr probe came from The Washington Post and ABC Radio the night of January 20, when the White House said it first heard about it.)
Both the prosecutors' and Clinton's arguments have weight. If accurate, the president's statements to Currie about his relationship contradict the findings of the Starr report. (For example, Starr's allegations about their sexual contacts would be false if, indeed, he "never touched her.") But the timing of the conversation — after Clinton's deposition, as the Lewinsky story began to break — makes Clinton's talk with Currie seem suspect. While it is possible that potential testimony from Currie was unknown, prosecutors have pointed out that Currie's name had already been mentioned in connection with Lewinsky during the Jones deposition on January 17, indicating that she was a likely witness. If Clinton's intent was to mislead Currie or sway her testimony, he would have had to believe she would be called to testify. Presumably, only Clinton knows for sure what his motives were.
If the House managers can demonstrate that Clinton intended to affect Currie's
eventual testimony, it might qualify as an obstruction case. But they are unlikely to find evidence that will expose Clinton's motives, which leaves another open question of fact for senators to decide.
The Senate may be aided by other events that occurred around the same time, including a January 15 visit by Currie to Vernon Jordan to discuss a call from Newsweek reporter Michael Isikoff (Currie was driven there by Lewinsky) or the repeated attempts by Currie to contact Lewinsky after Currie's January 18 meeting with Clinton.
As with other charges, more testimony from Currie or Jordan may be sought
on these issues.
Charge 7: An Influential Man (Pt. II)
(7) On or about January 21, 23 and 26, 1998, William Jefferson Clinton made false and misleading statements to potential witnesses in a Federal grand jury proceeding in order to corruptly influence the testimony of those witnesses. The false and misleading statements made by the William Jefferson Clinton were repeated by the witnesses to the grand jury, causing the grand jury to receive false and misleading information.
If the testimony of Clinton's aides is to be believed (and it is the same
evidence crucial to the last part of Article I), the president told
them things about his dalliances with Lewinsky that were misleading at best and outright false at worst.
In late November, months after the Starr report was released, he told the House Judiciary committee, "I did not want my family, friends, or colleagues to know the full nature of my relationship with Ms. Lewinsky." But did he, as the article alleges, want his colleagues to hear falsehoods he hoped they would repeat to investigators?
House Democrats defended Clinton's actions, insisting that because he denied the Lewinsky affair publicly, it would have been consistent to also deny it to his staff.
So is it obstruction? The charge here is similar to the allegation he tried to influence Betty Currie's testimony. Once again, Clinton's possible guilt lies in his intent.
Again, senators could seek additional evidence of Clinton's motives. The duty of Clinton's aides to defend him may become a salient issue, and they may be asked to give more detail about the conversations and their take on the president's motives. (While this might be considered hearsay in a courtroom, it would likely be admissible during the Senate trial.)
In Sum...All or Nothing?
The same charges that hold the most weight in Article I — Clinton's
silence during the Jones deposition, the gifts issue and his alleged
encouragement of Lewinsky to mislead the Jones lawyers — hold the most
weight here. As for Clinton's alleged attempts to sway potential witnesses (a hard charge to prove in most circumstances) or the alleged job-for-silence deal, corroborative evidence will be remarkably difficult to come by.
The prosecutors' best hope is that the lack of clear legal standards
in the Senate trial provides them more latitude. But they will need more evidence, presumably from witnesses, to make their case. Even if more solid evidence appears, political considerations by senators still make this an uphill battle.
One factor that could work in the prosecutors' favor is that the article charges Clinton with "one or more" of the alleged acts of obstruction. If senators find he committed even one, they would presumably have to vote to convict on Article II, though the White House claims that this any-of-the-above strategy is "constitutionally defective."
Because so much of Article II boils down to Clinton's intent, prosecutors will likely push senators to examine the overall pattern of Clinton's behavior. We can, therefore, expect discussion during the trial about whether the president's actions were, as law professor Charles Black described impeachable offenses, "wrong in themselves to a person of honor" and whether they are serious enough to warrant conviction. (More on Black's argument.)
If the Senate debate is framed in those terms, we can also expect
consideration of serious Constitutional issues: for instance, does the sanctity of the "rule of law" — as Clinton's prosecutors are likely to frame this debate — overwhelm the independence of the executive branch? And are the arbitrarily-defined offenses of perjury or obstruction of justice unacceptable behavior by public officials no matter the circumstances?
Introduction
Article I
Charges 1 & 2: What is Sex? | Charge 3: Speak No Evil, Hear No Evil? | Charge 4: A Man of Influence? | In Sum...A Man of Honor?
Article II
Charges 1 & 2: Greasing the Wheels? | Charge 3: The Trail of the Gift Horse | Charge 4: Escape to New York | Charge 5: Speak No Evil, Hear No Evil? (Part II) | Charge 6: The Four Questions | Charge 7: An Influential Man (Pt. II) | In Sum...All or Nothing?
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