Mr. Clinton admits and acknowledges ... that he knowingly gave evasive and misleading answers, in violation of Judge [Susan Webber] Wright's discovery orders ... in an attempt to conceal ... the true facts about his improper relationship with Ms. Lewinsky.... He engaged in conduct prejudicial to the administration of justice in that his discovery responses interfered with the conduct of the Jones case.
—Agreed Order of Discipline, signed by President Clinton on Jan. 19, 2001
I now recognize ... that certain of my responses to questions about Ms. Lewinsky were false.
—Statement by President Clinton, same day
Whoever corruptly ... influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished [by] imprisonment for not more than 10 years, a fine ... or both.
—U.S. Code, Title 18, Section 1503
Bill Clinton has not quite admitted that his false, misleading, and evasive testimony under oath was perjury. He insisted in his Jan. 19 statement that he "tried to walk a line between acting lawfully and testifying falsely" during his deposition in the Paula Jones case. And he claimed that it took him quite awhile thereafter to figure out that his assertions—for example, that he had never been alone with Monica Lewinsky—were false. Did he admit lying under oath? That depends on what the meaning of the word lying is.
Clinton has now essentially admitted, on the other hand, that his deposition testimony obstructed justice—"interfered with the conduct of the Jones case." But the truth is that if this false deposition testimony had been the only way for Clinton to avoid admitting his affair with Lewinsky, as is widely believed, it would have been a pardonable, almost trivial offense, warranting neither prosecution nor impeachment.
Indeed, it is hard to imagine a more honorable lie than one designed to avoid inflicting anguish and humiliation upon one's spouse, child, and lover (as well as oneself), by deflecting questions that nobody should be required to answer, questions demanding intimate information without enough relevance to the Jones sexual harassment lawsuit to warrant the invasion of privacy.
Let me pause for a moment to acknowledge that faithful readers of this column can be forgiven for wondering whether I've suddenly gone soft on lying about sex. Actually, I've always been soft on lying about sex. But I haven't always made myself clear. So I'd like to revise and extend my remarks by stressing three points that you might want to keep in your medicine cabinet as antidotes to further eruptions of the outlandish Clinton fantasy that he "saved the Constitution."
First, Clinton's lies about Lewinsky during the deposition were not the only way to shield his private life. Second, those lies were the least of this incorrigibly dishonest man's cover-up crimes, which continued for more than 13 months. Third, all of Clinton's crimes combined have done less damage to the integrity of the legal process than his contemptible (if noncriminal) assault—while serving as the nation's chief law enforcement officer—on truth-seekers and truth-tellers, as well as on the rule of law and the very idea that truthfulness is an important value.
Clinton had known since Dec. 6, 1997, six weeks before his Jan. 17, 1998, deposition, that Lewinsky was on Paula Jones' witness list, and thus that Jones' attorneys must have known enough to inquire into the relationship. He could have acted then to avoid giving any testimony at all.
One option was to settle the Jones case—which Clinton ended up doing in November 1998, for $850,000. Another was to appeal Judge Wright's order that he answer questions about consensual affairs, on the ground that the Constitution implicitly bars courts either from requiring a sitting President to testify in a civil case or from requiring a sexual harassment defendant to testify about a consensual intimate relationship. Clinton might well have won the ensuing court battle, and could at the very least have spent a year or two appealing all the way to the Supreme Court.
Why did Clinton pass up these perfectly legal and proper options for protecting his privacy? Why did he choose instead to lie under oath, while encouraging Lewinsky (in a 2 a.m. phone call and thereafter) to lie? Apparently because either settling early with Jones or refusing to testify would have carried a political cost. It would have been especially awkward for a President who had championed a privacy-destroying provision of the 1993 Violence Against Women Act—which empowers plaintiffs to rummage through defendants' sex lives by compelling testimony from them and their suspected lovers—to claim it could not be used in his own case.
So the bottom line is that Clinton lied under oath not in order to protect anyone's privacy, but to keep his approval ratings high. The same is true of his broader pattern of cover-up crimes, the scope of which were well summarized by Chief Justice Richard A. Posner of the U.S. Court of Appeals in Chicago in his 1999 book, An Affair of State: It is clear beyond a reasonable doubt, on the basis of the public record as it exists today, that President Clinton obstructed justice, in violation of federal criminal law, by 1) perjuring himself repeatedly in his deposition in the Paula Jones case, in his testimony before the grand jury, and in his responses to the questions put to him by the House Judiciary Committee; 2) tampering with witness Lewinsky by encouraging her to file a false affidavit in lieu of having to be deposed, and to secrete the gifts that she had received from him; and 3) suborning perjury by suggesting to Lewinsky that she include in her affidavit a false explanation for the reason that she had been transferred from the White House to the Pentagon. He may also have tampered with potential witness [Betty] Currie, conspired to bribe Lewinsky with a job that would secure her favorable testimony, and suborned perjury by Lewinsky ... but these offenses cannot be proved with the degree of confidence required for a criminal conviction.
This from a judge who may also be the nation's pre-eminent legal scholar, and whom even James Carville would have trouble smearing as obsessed with sex or partisan bias. Posner disdains "sexual Puritanism" and those conservatives who have "a morbidly exaggerated fear of moral laxity"; he takes a benign view both of Clinton's "trivial sexual escapade" and of his "irresistible human impulse to conceal" it; he suggests that Clinton has been a good President (cover-ups aside); and he faults Kenneth Starr for prosecutorial overkill. All this lends credibility to Posner's dismissal of the widespread portrayals of Starr as "a sex-obsessed religious nut, an extreme right-winger, and a Clinton-hater," and to his assertion that "Clinton was guilty of serious crimes, and [that] the behavior of the independent counsel's office, Linda Tripp, and Paula Jones' backers did not excuse or mitigate that guilt."
Even more damaging than these crimes were Clinton's succession of lies to the American people; his abuse of the powers and privileges of his office to promote his lies; his vicious attacks (mostly through subordinates and surrogates) on truth-seekers such as Starr and truth-tellers such as Linda Tripp; and his efforts—aided and abetted by media apologists and by political propagandists posing as professors—to devalue the long-established principle that lying under oath is a serious crime. And he won't stop lying.
Clinton's crimes would have brought a less powerful malefactor a prison term of some 30-37 months under the Federal Sentencing Guidelines, according to Posner's "conservative estimate." This column nonetheless welcomes the Jan. 19 deal that ended both Independent Counsel Robert W. Ray's investigation and the Arkansas proceeding to disbar Clinton. (He instead agreed to a five-year suspension of his law license.) Our new President surely didn't need to spend his honeymoon mired in the Clinton mess. And who would want to watch more reruns of this tedious show?
It is time to move on. Clinton, happily, already has—to New York. He'll fit right in. "Here we're used to executives with a weakness for young women," observes New York Times columnist John Tierney. "We don't expect them to tell the truth all the time. If one executive in need of money for his organization is willing to overlook the crimes of a fugitive financier named Rich, we can admire it as a smart business deal.... [And] perhaps the Sexgate scandal truly changed him. He did, after all, receive counseling from the Rev. Jesse Jackson."
Washington's loss is your gain, Manhattanites. It is with varying degrees of regret that we provincials part with "our lovable rogue prince of prosperity," in the words of Newsweek's Jonathan Alter. But you can keep him.
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