Q: At any point did you lie to the FBI?
A: No, I did not.
With that, Henry Cisneros lied again, this time (March 15) to USA Today. Fortunately for Cisneros, who is secretary of housing and urban development, and for President Bill Clinton, lying to the news media (and the American people) is not a crime.
But lying to the Federal Bureau of Investigation is. It’s a federal felony, punishable by up to five years in prison. And people have gone to the slammer for lies less blatant (and less "material") than those that Henry Cisneros told his FBI background checkers in late 1992 or early 1993.
Cisneros’ lies, made in pursuit of the high office he now holds, were, to be sure, pretty petty: He understated (vastly) the amounts of-and perhaps the motivation for-his more than $150,000 (as of 1992) in payments to his former mistress. Whether lies of that nature are serious enough to warrant prosecution is a "close and difficult" question, as Attorney General Janet Reno said in her March 13 application for appointment of an independent counsel to consider whether Cisneros should be indicted for his false statements and for conspiring with the former mistress to deceive the FBI.
Among the considerations that should guide prosecutorial discretion in such close cases is whether indictment is necessary to deter others from committing similar crimes. Cisneros has so far paid no penalty (other than some bad publicity). He still sits in the Clinton Cabinet. And he is still lying, by saying things like "whatever mistakes were made were [not] intentional." Should that tip the balance toward indictment? The point is not that prosecutors should bring charges for the purpose of forcing people out of public office. It’s that in the circumstances of this case, criminal prosecution may be the only way to vindicate the principle that high-level officials should not be allowed to commit crimes with total impunity. Or maybe not (on which more below).
So why is Cisneros still sitting in the Clinton Cabinet? Why did the president urge him to stay and tell him that they should "stick together", and praise him as a "man of integrity and character"-all on the very day (March 14) that Reno had released irrefutable evidence that Cisneros had lied to the FBI, for the apparent purpose of deceiving Clinton himself, his transition team, and the U.S. Senate?
The conventional answers are that Cisneros is widely viewed as one of the Clinton Cabinet’s brightest stars, and that his peccadillo has come to light at a perilous time for HUD, which is at risk of congressional abolition. But these factors cannot alone explain what is, after all, a historic first in the annals of political lying: a president who seems genuinely eager to "stick together" with an appointee who has just been exposed as a liar by the attorney general and may be on his way to prison.
THE EMPEROR HAS NO CLOTHES
No, the principal reason why Cisneros is still standing tall as a symbol of Clintonite ethical standards is that the emperor has no clothes, and can ill afford to acknowledge the ethical nakedness of some of his courtiers. Consider:
Cisneros had a mistress named Linda Medlar; Clinton had a mistress named Gennifer Flowers.
Cisneros’ mistress surreptitiously taped their phone calls; Clinton’s mistress did the same.
Cisneros secretly paid his mistress more than $200,000 from 1990 through 1993, and got a wealthy businessman to pay her another $16,000 in late 1993 and early 1994; Clinton is alleged (by Flowers and a state trooper) to have used his power as governor of Arkansas to help his mistress get a state job.
("That lady was on the payroll of the state of Arkansas and they didn’t go after him for it-public money," Cisneros remarked to Medlar in one tape-recorded phone call.)
Cisneros lied to the FBI (by claiming he had paid Medlar a small fraction of the actual amount) to win a Cabinet slot; Clinton lied to the American people (by denying his affair with Flowers) to win the presidency.
(The main evidence that Clinton lied about Flowers is this: When Steve Croft of "60 Minutes" asked Clinton, on Jan. 26, 1992, "I’m assuming from your [previous] answer that you’re categorically denying that you ever had an affair with Gennifer Flowers," Clinton responded: "I’ve said that before, and so has she." Similarly, on Feb. 12, 1992, on "Nightline," Clinton complained that all the press, wanted to ask him about was "a woman I didn’t sleep with and a draft I didn’t dodge." Hardly a soul in the state of Arkansas believes that Clinton did not sleep with Gennifer Flowers. And details of their affair, which she advertised in 1992, have since been corroborated by, among others, three Arkansas state troopers who served as Clinton bodyguards, two of whom say they often drove the then governor to rendezvous at Flowers’ apartment.)
I cannot tell a lie: In an earlier column ("Lies, Damned Lies, and Sex (Lies," Feb. 3, 1992, Page 23), I argued that candidate Bill Clinton should not be disqualified by his sex lies, both because they were mitigated by his need to fend off media prying into his private life and because of the reality that nobody who always practices what Jimmy Carter preached ("I’ll never lie to you") will ever be elected president.
I still believe that. But even a devoted disciple of Machiavelli should have trouble stomaching all the mendacity that we have seen from this president and this administration. After taking office full of pretensions of being the most ethical bunch ever to grace the banks of the Potomac, the Clinton administration has proven that Democrats can lie at least as much as Republicans do-no mean feat, after 12 Reagan-Bush years.
Put aside the dissembling by Clintonites like Webster Hubbell, William Kennedy III, Roger Altman, George Stephanopoulos, Joshua Steiner, David Watkins, Henry Foster, Ira Magaziner, and Ronald Brown. And put aside things like the president’s incredible claim (through his sexual harassment counsel, Robert Bennett) that he "has no recollection of ever meeting" Paula Jones, who is suing him for allegedly making a crude advance in a Little Rock hotel room. The Cisneros episode by itself proves that Bill Clinton is so tangled in his own web of deceptions that he has degraded the ethical tone of the entire government.
But perhaps I’m missing something; perhaps I’m the only journalist in Washington naive enough to disapprove of lying by politicians against whom I have no partisan or ideological grievance. Pillars of the Washington punditocracy and legal establishment see the Cisneros case not as a new high-water mark in tolerance of political lying, but as an unfortunate distraction for Cisneros and (some say) a lesson about the workings of the independent-counsel statute.
Columnist Albeit Hunt of The Wall Street Journal trashed Reno as a gutless, "finger-to-the-wind politico" because she did not bury this "specious case" in the Justice Department; Hunt said sympathetically that Cisneros had probably lied to deceive his wife (not the FBI) about "the size and scope of the payments," and that his lies were not "material" because (in Hunt’s view) the truth would not have torpedoed his Cabinet-seat hopes.
Columnist David Broder of The Washington Post lamented that it was a shame that a fine fellow like Cisneros was having to grapple with the "very narrow-almost irrelevant-legal question[s]" of materiality and conspiracy, because "if he is forced to step down, it will be a real loss." An editorial in the same newspaper, while supporting Reno’s decision to seek an independent counsel for Cisneros, added: "We hope if he’s done no wrong, he can and does stick it out." Perhaps a follow-up editorial will explain how a man can do "no wrong" while lying to the FBI.
Robert Bennett said on ABC’s "This Week with David Brinkley" that "we’ve created a monster" (the independent-counsel statute), and that Reno "could have bitten the bullet and not gone forward" in the Cisneros case. (Was this a subtle White House message to Bennett’s client’s subordinate not to go forward with an independent counsel for, say, Commerce Secretary Ron Brown?)
Former Clinton White House Counsel Lloyd Cutler, on the same program, complained that the statute’s "threshold is much too low," because it gives the attorney general no discretion to "conclude, as in the case of Mr. Cisneros, that there was no criminal intent to deceive."
I beg to differ. I, too, have doubts about the independent-counsel statute, and have proposed an alternative system ("How About a Semi-Special Public Prosecutor?" Dec. 13, 1993, Page 25). And some independent counsel have yielded to the built-in incentives to overdo. But there is delicious irony in the complaints of Democrats like Bill Clinton and Lloyd Cutler about the ferocity of this statute: It was used for years by Democrats as a weapon against Republican presidents, and was re-enacted in 1994 with the enthusiastic support of Bill Clinton and Lloyd Cutler.
More to the point, the Cisneros case (so far, at least) illustrates the virtues, not the flaws, of the statute. It is rooted in the manifest truth that politically appointed attorneys general cannot and will not be trusted to act apolitically in disposing of allegations of criminality made against the president or his high-level appointees.
While Cisneros is entitled to the presumption of innocence on the ultimate question of criminal guilt or innocence the evidence already on the public record makes it utterly clear that he made false statements to the FBI; that he did so with "intent to deceive"; and that Reno would have flouted her clear legal duty under the statute had she "bitten the bullet and not gone forward" by burying the case at Justice.
The evidence also suggests that Cisneros’ lies were probably "material" within the meaning of the federal false-statement statute (18 U.S.C. §1001), as it has been construed by the courts-even if, as President Clinton and two key senators have asserted, the amounts of Cisneros’ payments to Medlar would not have affected their judgment that he was fit to serve in the Cabinet.
The evidence of Cisneros’ deceptive intent begins with Reno’s observations that he had "informed the FBI that his payments to Medlar were no larger than $2,500 at a time and no more than $10,000 per year, when in fact, many of his payments were substantially larger, and the yearly totals were between $42,000 and $60,000," and that this "statement was made to the FBI soon after he made a payment to Medlar that was substantially larger than $2,500."
Then there are the transcripts of more than 40 hours of tape recordings that Medlar made of her (often poignant) phone conversations with Cisneros; some were aired on the tabloid television show "Inside Edition" last September, and more were filed in Texas state court in a suit by Medlar seeking $256,000 from Cisneros for breach of a January 1990 "oral contract" in which (she claims) he promised her $4,000 a month until her teen-age daughter graduates from college, in 1999.
According to a transcript dated Dec. 12, 1992, for example, Cisneros told Medlar that he had told Clinton transition team members (including now-convicted presidential buddy Webster Hubbell) that the payments "came to $10,000 to $15,000 a year," and that "the largest sum I have ever given you as $2,500," and that "I clearly gave the impression we are not talking about….