Case Dismissed

Honorable and distinguished members of the U.S. Senate! I rise before you to plead the case for President Clinton's acquittal. Of course, I'm not a real lawyer; I just play one in this article. So I can be honest.

Clinton lied his head off, under oath, about his fling with Monica Lewinsky. This is bad.

You, of course, need not convict him even if you think he is guilty. You may leave him in office simply on the grounds that the people who elected him want him to stay, and that his misconduct is not serious enough to warrant overturning their judgment. That would be fine. In fact, it would be wise. Senators are supposed to be wise. House members are supposed to aspire to be Senators.

But the legalists hector you at every turn, saying that every Senator, as a constitutional "juror," is duty-bound to vote on the merits of the case, not on the politics. Can you, in good legal conscience, vote to acquit, or even to dismiss? Yes. You can, and you should.

Begin by understanding what the Senate trial is not: a determination of the President's fitness for office. The Constitution authorizes you to throw out a President only if he has, in actual fact, committed high crimes and misdemeanors. Unlike a federal judge, who is confirmed by Congress, the President is elected directly by the people. Only they are entitled to get rid of a reprobate and replace him with some other reprobate. To remove a President because you do not believe him to be a suitable commander in chief, as the House urges, would amount to a constitutional coup. So repeat after me: If he's just unfit, you must acquit!

Moreover, you cannot convict a President for low or middling crimes and misdemeanors. The Framers would have said "any" crimes and misdemeanors if that was what they meant. They said "high."

You can convict, then, only if the President committed the crime and the crime is high. So. Did he? Is it?

Start with the second Article of Impeachment, the one charging Clinton with conspiring to obstruct justice by covering up his affair with Monica Lewinsky. That he did conspire to cover up their affair is beyond question. That is what adulterers do; in fact, it is what society expects them to do. Cover stories? Jobs to keep the tootsie happy? Retrieval of incriminating gifts? Adultery 101. Trading favors for false testimony in court, or deliberately destroying evidence in an investigation, is a crime. Hiding legal, but embarrassing, behavior is not. At least, not yet.

The House's case on obstruction, though not implausible, requires that whole strings of actions by Clinton and others, and reams of often ambiguous or conflicting evidence, be read in a sinister light. Sure, the job-hunting effort for Monica began before she became a witness, but it was redoubled afterward. Sure, the President coached his secretary before she was named as a witness, but he must have expected that she would be a witness. Sure, he kept giving Monica gifts even while supposedly moving heaven and earth to get the old gifts back, but that just shows he was still conspiring with her.

This kind of thing may be (barely) all right for impeachment, but the President's lawyers are right to argue that for conviction the proper standard is proof beyond a reasonable doubt. When the question is whether to override an election for the first time in American history, nothing less will do than malice aforethought, conclusively proven. A long chain of suspicious inferences does not meet that standard.

I won't belabor the point, because the White House has belabored it all week, and because the obstruction charges are not the reason Clinton's case is before you. The reason is that he lied under oath. And here the evidence speaks overwhelmingly against him. So now we come to the first Article, which charges him with perjury before a federal grand jury.

The White House points out that the issue comes down to her word against his on the precise nature of their sexual frolics. Maybe. The trouble is that in this case, it is painfully obvious who is telling the truth.

There remains, however, a further consideration, which deserves much more attention than it has received. Clinton lied under oath on two occasions. In his deposition to Paula Corbin Jones' lawyers on Jan. 17, 1998, he lied comprehensively. He denied everything, and he allowed his lawyer to deny everything. On Aug. 17, he lied again, to the grand jury. But this time he acknowledged his affair with Lewinsky, and settled for lying about several key details (had he touched her breasts?) and insisting he had not technically lied in January.

As it happens, in December the House considered two Articles about lying, one of which focused expressly on the Jones vs. Clinton deposition. By a vote of 229-205, the House decided not to impeach Clinton for that testimony. Question. If the original big lie did not warrant impeachment, how can simply repeating a portion of that lie warrant removal?

One answer might be that lying to a grand jury is a more serious crime (thus "higher") than lying in a civil deposition. But legal experts say that the law–to whose full benefit Clinton is entitled–recognizes no such distinction. Perjury is perjury, grand jury or no. Same offense, same penalty.

Another answer might be that the lesser lie is better proven than the greater lie. But the opposite is the case. Clinton's claim in the Jones deposition that he did not remember having been alone with Lewinsky is even more egregiously ridiculous than his claim to the grand jury that he did not touch what he delicately referred to as Lewinsky's "enumerated areas." It is ridiculous even on his own account of things. No oath-against-oath here.

The only plausible answer I know of is the one given by Rep. Lindsey Graham, R-S.C., a former prosecutor who voted (as did the House as a whole) to charge Clinton with the grand jury lie but not with the deposition lie. His reasoning: Because the deposition was excluded from evidence by the judge in Jones, it may not have been material to Jones' sexual-harassment suit, in which case it wouldn't have been perjury. By contrast, the lies to the grand jury were incontestably material, since the grand jury was investigating those very lies.

This argument stands up logically, but at the expense of turning the grand jury lie into an absurdly technical offense. A nonimpeachable lie becomes impeachable once it is (partly) repeated to people investigating whether it is impeachable? Technically, perhaps. But I will cheerfully pay $100 to the first person who can show me a single case, in the whole history of this Republic, where a jury convicted somebody of perjury for (hold on tight, now) telling lies about lies that were deemed immaterial to a civil case that was dismissed.

So, on the one hand, if Clinton did not commit perjury the first time around, then his second offense is of a sort that has rarely, if ever, been punished in real life. If, on the other hand, he did commit perjury the first time around, then the House has already decided that his offense need not warrant even impeachment, much less removal. Either way, the crime cannot possibly be "high."

The point I make here is not just fancy footwork (though it is certainly that). The House's nonchalantly inconsistent treatment of Clinton's perjuries belies the House managers' own wailing about the terribleness of the crime. Consider what one of the House's impeachment managers, Rep. Stephen E. Buyer of Indiana, told the Senate: "There is no difference between a cash bribe or sitting before a federal judge and perjuring oneself." If, Buyer said, Clinton had not only lied in his Jones deposition but "had then offered Judge Susan Webber Wright a cash bribe, there would be no question in this body what . . . you must do."

Alas for Buyer, the comparison shows not that Clinton's lying is like bribery, but that it is different. For if Clinton had bribed Judge Wright, the House would have impeached him for it! The House's own ambivalent behavior vindicates the public's quite correct view: The President's lying is the sort of offense that you sometimes punish and sometimes don't. Which is to say it is a "low" crime.

The House managers, in their case against Clinton, argue that if you don't remove a President for this misdeed, then you can't remove him for anything. "The bar will be so high that only a convicted felon or a traitor will need to be concerned." On the contrary. If you do remove a President for this misdeed, then you can remove him for anything. Senators, nothing Bill Clinton has done is remotely as damaging to the Constitution's fine balance of powers as is the precedent you would set by removing a President on the case now before you.