Opening Argument – Deceptive Defense Brief

National Journal

To get the flavor of President Clinton’s long-awaited, 184-page, definitive defense against charges of criminality and impeachable offenses, let’s turn to page 77.

That’s where the Clinton brief seeks to explain away a succession of sworn statements he made during his Jan. 17 deposition in the Paula Jones case, which claimed that while he may have ”exchange(d) a few words” with Monica Lewinsky ”once or twice” when she brought things to the Oval Office, he had no specific recollection of ever being alone with her in any room in the White House.

What says the President now that we all know he had some 10 sexual encounters with Lewinsky in various rooms in the Oval Office complex?

The Clinton brief, released on Tuesday, begins by asserting that this particular perjury charge hinges on ”the incorrect premise that the President testified that he was never alone with Ms. Lewinsky.” False. That’s not the charge, and Clinton’s lawyers know it.

Then the Clinton brief quotes a question and answer from the deposition, truncating both with apparent intent to deceive: ”For example, the President answered ‘Yes’ to the question ‘Your testimony is that it was possible, then, that you were alone with her . . . ?’ ”

Here’s the actual question and answer, in which I have italicized the critical words that Clinton’s lawyers chose to delete.

Q: ”So I understand, your testimony is that it was possible, then, that you were alone with her, but you have no specific recollection of that ever happening?”

A: ”Yes, that’s correct. It’s possible that she, in, while she was working there, brought something to me and that at the time she brought it to me, she was the only person there. That’s possible.”

Then comes footnote No. 128, at the bottom of page 77, with the amazing assertion that ”the term ‘alone’ is vague unless a particular geographic space is identified. For example, (Betty) Currie testified that ‘she considers the term alone to mean that no one else was in the entire Oval Office area.’ ”

This is not an honest document. It does point out some weaknesses (and distortions) in a few aspects of Kenneth Starr’s case against the President, including Starr’s claims that it was Clinton who orchestrated Currie’s Dec. 28 retrieval of a box of Clinton-Lewinsky gifts, and that Vernon Jordan’s efforts to get Lewinsky a job were part of Clinton’s effort to get her to sign a false affidavit. But the brief’s attacks on the stronger aspects of Starr’s case–the allegations that Clinton committed multiple perjuries and encouraged both Lewinsky and Currie to lie–are littered with misrepresentations of the evidentiary record.

To accept the Clinton defense, Rep. Lindsey O. Graham, R- S.C., told White House Counsel Charles Ruff at the end of his oral presentation on Wednesday, would ”ruin the rule of law, and he’s not worth that.”

”Ruin” was hyperbolic. But the logic underlying both the deceptive Clinton brief and Ruff’s much more forthright oral presentation would clearly damage the rule of law, in at least two specific ways.

First, the White House defense to the perjury charges construes the law in a way that would effectively preclude prosecution of virtually all perjurers who are clever enough to cloak their lies in cynical, after-the-fact distortions of the meanings of words that are relatively clear and unambiguous. If Clinton can beat a perjury rap by swearing (for example) that he has no recollection of ever being alone with Lewinsky in the hallway between the Oval Office and his private kitchen area (where most of their sexual encounters took place)–and then later claim that this unambiguously false statement was actually true because there were people in nearby rooms, then no sufficiently inventive perjurer can ever be prosecuted.

While the White House is correct to stress the legal principle that a perjury prosecution cannot be based on literally true (even if deliberately misleading) answers to poorly framed questions, the brief’s suggestions that Clinton’s answers were, in fact, true (or at least intended to be true) amount to a deeply cynical assault on common sense and common language.

Second, the White House argument that Clinton could not properly be prosecuted for his Aug. 17 grand jury testimony rests on a premise that would allow virtually all sexual harassers and date-rapists to lie under oath with impunity about (for example) whether their victims had consented to sex.

The most egregious of Clinton’s lies to the grand jury was his contradiction of Lewinsky’s account of what he was doing during the ”inappropriate, intimate” encounters when she was performing oral sex on him.

While dismissed as ”inconsequential” in the White House brief, this contradiction is no trivial matter: By Clinton’s own admission, his Aug. 17 denial that he had ever touched Lewinsky’s breasts or genitals was an indispensable component of his claim that he had been truthful in swearing on Jan. 17 that he had never had ”sexual relations” with her.

The evidence that Clinton’s Aug. 17 denial of any intimate touching was perjury is about as overwhelming as such evidence could possibly be in any one-on-one, he-said, she-said encounter.

First, Clinton’s account is inherently preposterous. It may be possible to imagine a man being totally passive–with a slice of pizza in one hand and a telephone in the other, perhaps–in 10 separate sexual encounters. But it’s not easy.

Second, the dilemma Clinton faced on Aug. 17 shows that he had a powerful motive to lie in precisely this way. He had sworn in his Jan. 17 deposition that he had never had ”sexual relations” with Lewinsky; ”sexual relations” had been defined for purposes of the deposition to include any situation in which any person ”knowingly engages in or causes . . . contact with the genitalia, . . . breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of any person”; and by Aug. 17, Clinton knew both that Starr would probably be able to prove (through DNA testing) that the semen stain on Lewinsky’s blue dress was his, and that Lewinsky had agreed to testify under a grant of immunity.

How, then, could Clinton continue to deny in his grand jury testimony that he had lied under oath on Jan. 17?

Here’s how: First he claimed–implausibly–that during the Jan. 17 deposition he had interpreted the definition of ”sexual relations” as excluding oral sex (or other intimate touching) performed by Lewinsky on him, while including any intimate touching by him of her. Next he claimed that he had never touched Lewinsky intimately.

Third, although Lewinsky has told many a lie, her testimony that Clinton stimulated her intimately on 10 different dates is corroborated by the copious and highly specific detail of her accounts to the grand jury; by the explicit details of a draft letter she had once written to Clinton; and by the testimony of seven friends, family members, and counselors that she had told them explicitly, in 1996 and 1997, that Clinton had fondled her on various occasions, while admitting to some that he had never been willing to have sexual intercourse with her. Lewinsky’s credibility is admittedly suspect, but it is bolstered in this case by her extreme reluctance to be a witness and by the fact that she could be prosecuted, if she lied to the grand jury.

All of this suggests, in my view, a probability on the order of 98 or 99 percent that Clinton lied in his grand jury testimony.

The White House lawyers not only claim that they believe Clinton’s story–some legal ethicists say lawyers have an ethical privilege to suspend disbelief when defending inherently incredible testimony by their clients–but they also argue that no responsible prosecutor could bring to trial a perjury case based on such evidence.

”It’s hard to imagine,” the Clinton brief states, ”how what is at most a difference of recollection over the precise details of the admitted physical contact between President Clinton and Ms. Lewinsky could be considered grounds for a perjury charge, much less grounds for impeachment.”

And it’s hard to imagine, if the Clinton brief were a correct statement of the law, how any man who sexually harassed– or even raped–a woman while they were alone could ever be prosecuted for contradicting her under oath, no matter how overwhelming the evidence.

Many lawyers shrug off this Clinton lie to the grand jury on the ground that he has to keep lying to avoid increasing his risk of a perjury prosecution.

I’m not so sure. But in any event, it is intolerable for a President of the United States to act in such a fashion.