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.