It depends on what the definition of "prepared" is
By James Higdon
July 14, 2000 | Frankly, I've had enough. I've watched the
situation go by for several years as an out-of-control
Republican Congress, and an Office of the Independent
Council dedicated to bringing down one of the most, if not
the most effective, presidents in my lifetime, attempted
everything from distortions of fact to distortions of law to
discredit William Jefferson Clinton's superb eight years in
office.
After finding nothing in careless allegations and trumped
charges surrounding Whitewater, Vince Foster, Filegate,
Travelgate, and the most scurrilous defamation that the likes
of Jerry Falwell could invent, the zealots of extremism finally
pinned their hopes to the refuge of perjury, and attempted a
failed coup by abusing the Constitution of the United States
of America.
After failing this coup for lack of votes (clever people, those
Founding Fathers) they persist to this day. By suggesting that
President Clinton may be tried for perjury after leaving office,
and constantly repeating the phrase, "it depends on what
the definition of 'is' is," or the word, "perjury," every time a
Democrat walks into view, they believe that eventually the
American people will buy the swill they're spewing. Because
of the mainstream pundits' refusal to work for a living by so
much as opening the Federal Code or a law book, instead
taking information from the faxes sent by the GOP, the tactic
seems to be having some success. Well, it's time that
someone blew the lid off the old perjury myth. No one was
ever going to prosecute Bill Clinton for perjury. They never
were, and they never will. Anyone who says anything
different is selling something.
On January 10, 1973, the Supreme Court of the United
States, through the eloquence of Chief Justice Burger
delivered a unanimous decision (9-0) on a remarkably similar
set of facts to the Clinton/Jones case involving a bankruptcy.
Of course, assuming that any criminal charges filed against
President Clinton, would be argued in Washington, DC, or
Virginia, any conviction would first be appealed in either the
DC Circuit or the 4th Circuit. Well, guess what! In 1995, a
unanimous three-judge panel in the 4th Circuit Court of
Appeals (penned by Senior Circuit Judge Butzner), cited
Burger's reasoning involving events that were almost identical
to the Clinton/Jones situation. And in a DC Case in 1996,
the Burger Court decision was again cited on similar facts.
In all three of these cases, the defendants' perjury convictions
were overturned.
The first of these cases, Bronston v. United States, 409
U.S. 352 (1973), is textbook law. This case and its progeny
are frequently cited in texts about evidence and procedure. It
should be well known to the likes of Kenneth Starr, and
should be standard reading to any prosecutor conducting a
grand jury investigation. It is certainly well known to many in
congress by way of their common legal backgrounds.
Particularly to the likes of Tom Campbell (R. California), a
former law professor at Stanford University.
You see, the courts do not much care for "perjury traps."
The Burger Court, quoting a "leading 19th century
commentator" on common law (the law handed down from
our English forefathers) reported that the law "throws a fence
round a person accused of perjury," because "the obligation
of protecting witnesses from oppression, or annoyance, by
charges, or threats of charges, of having borne false
testimony, is far paramount to that of giving even perjury its
deserts." In other words, the concept of getting a witness to
say what a zealous prosecutor wants him/her to say by
threatening to prosecute on every conceivable charge is as
old as the common law itself. Having witnesses fear to make
any unintentional misstatement is not a good engine for truth.
"Prevention" of perjury is therefore "better than cure." "The
burden is on the questioner to pin the witness down to the
specific object of the questioner's inquiry." (United States v.
Wall, 371 F.2d 398 (CA61967))
Then, and only then, can the intent of the witness to mislead
be determined beyond reasonable doubt. In order for
President Clinton to be convicted of perjury, his questioners
would have to have asked, "What is the definition of 'is?'"
"Precise questioning is the imperative as a predicate for the
offense of perjury." It is the questioning lawyer's duty "to
bring the witness back to the mark, to flush out the whole
truth with the tools of adversary examination."
As Burger concluded, "It may well be that [the president's]
answers were not guileless but were shrewdly calculated to
evade. Nevertheless…any special problems arising from the
literally true but unresponsive answer are to be remedied
through the 'questioner's acuity' and not by a federal perjury
prosecution."
In the 4th Circuit case, the defendant took advantage of the
multiple definitions for the word "prepare" in providing
misleading testimony, and the facts could not be more on
point. The 4th Circuit did their duty in echoing the Burger
Court by saying, "[a] perjury conviction cannot be based
upon evasive answers or even upon misleading answers so
long as they are literally true." (United States v. Hairston,
46 F.3d 361 (4th Cir. 1995)) Finally, the D.C. Court quoted
Mark Twain, "'[o]ften, the surest way to convey
misinformation is to tell the strict truth,' a statement that is
literally true cannot support a perjury conviction." (United
States v. Dean, 55 F.3d 640 (D.C. Cir. 1996))
Any skilled and learned litigator must be cognizant of these
rulings, as well as many others. It is my belief that President
Clinton's questioners were so informed. I believe, and it has
been fairly well established, that they knew the truthful
answers to their questions before they asked them. They
had already been in contact with Linda Tripp, and there is
evidence to suggest that there was some collusion with the
OIC. Instead of pressing the issue home, as was their duty,
they allowed the misleading answers to stand.
They knew that the President of the United States could not
be tried in a court of law, where such a prosecution would
be quickly thrown out, or a conviction would be overturned
on appeal. Instead, the president must be tried in the Senate
where an impeachable offense is anything that can garner a
two-thirds majority vote. With the pending mid-term
elections, perhaps the Republicans could gain a two-thirds
majority in the Senate if the public was sufficiently outraged
by charges of presidential perjury. Perhaps they hoped that
they could so embarrass President Clinton to the point of
resignation. Perhaps their friends in the Senate and House
could convince enough Democratic crossovers by their
backroom displays of unproven, unverifiable, and scandalous
accusations boxed neatly by Ken Starr's OIC. All of these
alternatives were discussed widely in news reports and talk
shows during the impeachment process.
If Paula Jones' attorneys were more concerned about
winning a case for their client than removing the President of
the United States (and such was their sacred duty as
attorneys at law), they would have exercised at least a
minimal effort to elicit the truth at the time that President
Clinton was questioned and deposed.
In attempting to garner public sympathy, and to quell charges
of an attempted coup, Republicans assured us that there was
no attempt to overthrow the lawfully elected government.
They assured us that even if the president were convicted, or
resigned, Al Gore would carry on the mantle of government
under the Constitution. But the process was underway, even
then, to conduct the same kind of misinformation campaign
against the vice president by the distortion of fact, and the
misapplication of law. From there, it is a perilously small step
to the complete subversion of the will of the people, and
installing the Republican Speaker of the House as the world's
most powerful leader. We the People have been put on fair
notice that as long as there remains a Republican majority in
Congress, and a Democratic president in the White House,
the law and the Constitution of the United States are barriers
that will be willingly torn down on the path to a bloodless
coup.
In November we return to the polling booth. Despite eight
years of national peace, prosperity, and the end of deficit
spending, the Republicans are telling us that Clinton was
never qualified to lead. They claim its obviousness in the
exposed affair with a young woman who once served under
him as an intern. In establishing that misdeed, they spent over
a hundred million dollars on investigations (public and
private), and "independent" counsels. They delayed judicial
appointments, shut down the government, and turned our
national discourse into a worldwide joke. Are the
Republicans prepared to lead in November? I guess that
depends on what the definition of "prepared" is.
[