The Volokh Conspiracy
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Lies About Sex: Bill Clinton, John Edwards, and NY States' Prosecution of Donald Trump
Donald Trump should get the same pass for lying about sex that former president Bill Clinton got and that former 2004 Democratic Party Vice Presidential nominee John Edwards got
The NY State criminal trial that is about to begin on April 15th is all about whether former President Donald Trump lied in his expense reports to cover up his payment of hush money to pornographic film star Stormy Daniels prior to the 2016 presidential election. NY argues that in doing this Trump violated NY State laws, almost all of which involve misdemeanor offenses. The prosecution implies that Trump's alleged lies and coverup are a violation of federal campaign finance laws, which makes the misdemeanors more serious and justifies the prosecution.
First, it is settled U.S. Department of Justice (DOJ) policy not to prosecute such cases, which is one of many possible reasons why the federal government has not brought any charges against Trump about the Stormy Daniels hush money matter. Another reason is that the DOJ may think Donald Trump's expense reports were truthful as Trump claims them to be. Second, when former President Bill Clinton perjured himself and engaged in obstruction of justice by denying under oath that he had had sexual relations with then-White House intern Monica Lewinsky, both in a deposition and before a federal grand jury, the judgment of the U.S. Senate was that Bill Clinton's "lies about sex under oath" did not disqualify him from holding the presidency.
430 law professors signed a letter to the Senate on November 6, 1998 writing that "making false statements about sexual improprieties" under oath before a federal grand jury "is not a sufficient constitutional basis to justify the trial and removal of the President of the United States." Harvard Law Professor Cass Sunstein wrote on October 4, 1998 in The Washington Post that mere lies about sex under oath were not in his view disqualifying behavior in a president of the United States.
Both the law professors' letter and Professor Cass Sunstein's op-ed tried to argue that perjury about a person' private sex life fell in a different category from perjury about the execution of a President's political duties, which would be a disqualifying offense for a President to engage in. It was noted that people often lie about adulterous sex to protect their spouses and to preserve their marriages, and not to retain or to win the presidency.
Of course, this is exactly why Donald Trump allegedly paid Stormy Daniels what is alleged to be hush money because Trump's alleged affaire with Daniels coincided with his wife Melania giving birth to Trump's son Barron. Former President Bill Clinton's perjury under oath before a federal grand jury led to his acquittal by the Senate in his impeachment trial, and, after Clinton left office, the only penalty he paid for his lies under oath about sex to a federal grand jury was disbarment and the entry of a plea bargain. Donald Trump's alleged lies about sex in filing his expense accounts are minor compared to Bill Clinton's lies about sex under oath before a federal grand jury at a time when he had sworn that he would take care that the laws be faithfully executed. As many remember, Clinton's DNA was found on a white stain on Monika Lewinsky's blue dress proving that he had in fact had sexual relations with Lewinsky.
In 2004, the Democratic Party's nominee to be Vice President, John Edwards, paid a woman $1 million in hush money to cover up an alleged adulterous affair leading to the birth of a child born out of wedlock. The U.S. Justice Department prosecuted John Edwards who defended himself arguing that he was trying to protect his wife from learning about his adultery and that lies about sex and hush money to cover them up were not an illegal, unreported campaign donation. The trial resulted in a hung jury, and the U.S. Justice Department declined to re-prosecute John Edwards. The Department adopted a formal position that DOJ would not going forward prosecute as campaign finance violations the payment of hush money. Lies about sex were not fit to prosecute as campaign finance violations. Again, this explains why the federal government has declined to prosecute Donald Trump over his payments of hush money to Stormy Daniels and others.
Edwards' behavior involved much more hush money than Trump had paid, as well as the birth of an illegitimate child. If what John Edwards did was not a felony warranting jail time then what Donald Trump did in allegedly paying hush money to Stormy Daniels does not disqualify him for running for President either.
The disparate treatment of John Edwards, and Donald Trump for paying hush money and lying about having done so suggests NY State prosecutorial misconduct. Even if Trump were to be convicted in the sham proceeding set to begin on April 15th, voters should give him the same pass for lying in order to cover up adultery that was given to Bill Clinton and John Edwards.
