If you turned on TV anytime during the past year, you know that no professional society had such a lousy year as lawyers. Legal discussions were all the rage, what with the president being a felon, and with lawyers bravely inventing new legal principles for every question on the table. Just when “L.A. Law” had made lawyers look cool, actual lawyers had to step to the plate and demonstrate how little respect for the truth many lawyers seem to have.
Consider just the issue of materiality. From the moment the Lewinsky scandal broke, one of the most crucial legal disputes was whether Clinton’s false statements in the Jones deposition were material. This question took on a greater urgency after it became clear that these statements were indeed false and that truth was not a plausible defense.
As explained by Richard Ben-Veniste, the argument of the President’s defenders was this:
In order to be perjury as opposed to a false statement it has to be material. And the judge, before she threw out the case, said that this was not central to the issues that Paula Jones had raised, so it was both not material, and in a case that was dismissed, pre-trial. Nobody was obstructed in that case. (Larry King Live, CNN, 9/23/98).
Despite its glaring weaknesses, the materiality claim came up like clockwork in every discussion of the President’s perjury. Defense lawyer John Wesley Hall told CNN viewers that Clinton’s lies under oath “ha[d] to be material in order to be perjury,” and that “in this particular case, Judge Wright ruled out the Lewinsky evidence before she even got to the question of summary judgment. So, Judge Wright has already held that the Lewinsky matter was not relevant to the ultimate outcome. And that complicates the question of perjury and whether or not he’s in contempt.” (CNN Burden Of Proof 2/18/99).
It wasn’t actually all that complicated a question: Materiality means basically what it sounds like. A statement is material if it is “predictably capable of affecting . . . the official decision.” Kungys v. United States, 485 U.S. 759, 771 (1988). That’s it. It’s not really complicated, if you think about it. But many defenders of the President acted as if it were, and their deeply flawed arguments provide a sobering perspective on the obviously incorrect outcome of the impeachment process.
Lindsay Graham voted incomprehensibly against the second article of impeachment (Clinton’s perjurious statements in the Jones deposition denying a sexual relationship with Monica Lewinsky), but in favor of the first article of impeachment (Clinton’s perjurious statements to the grand jury denying a sexual relationship with Monica Lewinsky and affirming his perjuries in the Jones deposition — denying a sexual relationship with Monica Lewinsky). If that seems confusing, it’s because it is completely illogical. Graham’s argument, such as it was, was that Clinton’s perjury in the Jones case was not material: Since Judge Susan Webber Wright ultimately had excluded evidence about Monica Lewinsky from the case, Lindsay concluded lies about Monica were not material.
This would have led to some confusion if the appellate court had reinstated the case as well as the Lewinsky evidence — as it surely would have, had Clinton not settled in the nick of time. It would be like saying a bank robbery doesn’t count if the bank later goes out of business.
Two Republican Senators who voted with the Democrats to acquit Clinton on the grand jury perjury count did so on the grounds that Clinton’s perjury was not material. Sen. Olympia Snowe (R-ME) explained her vote against the perjury count, (“Well, I gave it a lot of thought, Larry”): “The question was: given the underlying matter — it was dismissed as irrelevant” — which is irrelevant to materiality, see supra — “and the lawsuit was dismissed” — which is also irrelevant, see infra. Snowe observed that even the House didn’t enact the article concerning the Paula Jones lawsuit. She wasn’t much interested in the opinion of the House on what constituted an impeachable offense, otherwise, I note. “So when you’re considering the statute of perjury” Snowe concluded, “you have to determine materiality and it wasn’t there.” (Larry King Live, CNN, 2/11/99)
Senator James Jeffords (R-VT) made these two sound like models of clarity, by comparison. I’d paraphrase, but I think it’s important for you to read it for yourself.
Well, you take a look at the Paula Jones case. I used to be a prosecutor. I was an attorney general. If you gave me a case that said, I think we have obstruction of justice here.
And said, well, what happened to it.
Well, the court threw out the case.
Well, why should we go after him?
Well, still, it was kind of a crime.
Well, then, what happened?
Well, they settled the case[.]
They settled the case?
Yes. How much?
Eight hundred fifty-thousand dollars.
So you want me to prosecute a man who has paid $850,000 to settle a case, for which a judge has thrown it out of court?
I would say, get out of here[.]
That is a direct transcription of a United States Senator’s remarks on national TV about the most important vote of his life. (CNN Live Event/Special, 2/10/99). Bob Franken, CNN correspondent, gamely interpreted the Senator’s interesting comments as raising the issue of materiality. (Id.) Of course, they had nothing to do with materiality, they had to do with prosecutorial discretion. Moreover, the discretion whether to charge the President resides in the House, not in the Senate.
In her defense of the president in the Senate impeachment trial, Nicole Seligman, attorney for the President, said Clinton’s perjurious statements about his relationship with Monica were “irrelevant, immaterial to Mr. Starr.” Yes, maybe to Mr. Starr, as a citizen, but neither irrelevant, nor immaterial to Mr. Starr, as a criminal prosecutor, or to the grand jurors, as crime investigators.
The President himself invariably raised the immateriality argument about his perjuries every time he spoke of those particular felonies. In his testimony to the grand jury, Clinton referred to the Jones case only as “a lawsuit that was dismissed.”
As luck would have it, by May 1998, four federal judges had determined the “materiality” of false statements about Monica Lewinsky’s relationship with the President in the Jones case. The fact that Judge Wright had excluded all evidence relating to Monica Lewinsky from Jones’ case was part of the logical calculus of all four judges, and the fact that the case had been dismissed was part of the logical calculus of the three appellate court judges.
All four judges ruled the statements about the President’s relationship with Monica Lewinsky were material. See In re Sealed Case, 162 F.3d 670 (D.C. Cir. 1998).
This precise issue arose because the grand jury investigating Monica’s and the President’s corresponding perjuries in the Jones case had requested documents from Frank Carter. Carter was Monica’s attorney when she drafted her perjurious affidavit. Carter (and Monica, as the real party in interest) tried to block the subpoena by raising the attorney-client privilege. The prosecutors rejoined with the “crime-fraud” exception to that privilege. (Neither the district court, the Court of Appeals, nor the Independent Counsel suggested any impropriety by Carter.) Lewinsky argued in reply that because “evidence concerning Lewinsky” had been “excluded from the civil case,” her perjuries were not material, and therefore the crime-fraud exception did not apply. 162 F.3d at 673.
The issue before the court was Monica’s claim that the government could not establish perjury “because her denial of having had a ‘sexual relationship’ with President Clinton was not ‘material.’” Id. Monica’s perjury was the same as the President’s (no sexual relationship) presented in the same tribunal (the President’s deposition in the Jones case). If Monica’s affidavit was material, the President’s statements in the deposition also denying the relationship were material. The appellate court affirmed the district court’s ruling on the materiality of this perjury: “There can be no doubt that Lewinsky’s statements in her affidavit were — in the words of [the Supreme Court] — predictably capable of affecting” the judge’s decisions about the scope of discovery in the case. 162 F.3d at 674.
If there was any doubt that the “materiality” argument was a sham, it was put to rest by Judge Wright’s order sanctioning President Clinton for his lies in his deposition in the Jones case. Judge Wright made the following, shall we say, “material” observations about her prior ruling excluding the Lewinsky evidence from the Jones case:
In so ruling, and contrary to numerous assertions, this Court did not rule that evidence of the Lewinsky matter was irrelevant or immaterial to the issues in plaintiff’s case. Indeed, the Court specifically acknowledged that such evidence might have been relevant to plaintiff’s case. . . . . [The evidence was excluded], not because the Court considered such evidence to be irrelevant or immaterial, but because its admission would frustrate the timely resolution of this case and cause undue expense and delay. . . . Jones v. Clinton, 36 F. Supp. 2d 1118, 1122 n.7 (E.D. Ark. 1999).
As if to underscore her emphatic rejection of this argument, Judge Wright summarized her view of the evidence about Clinton’s lies as follows: “[T]he record leaves no doubt that the President violated this Court’s discovery Orders regarding disclosure of information deemed by this Court to be relevant to plaintiff’s lawsuit.” Id. at 1131 (emphasis added).
The lie about “materiality” was just one of the many invoked like a mantra to defend Clinton. What beyond Clinton was a stake remains elusive. In the end, all we know is, the left hated conservatives more than they hated a perjurer in the White House. At least with Nixon, the underlying hatreds were comprehensible. The Left hated Nixon (and the Right supported him) because of his support for Whittaker Chambers against Alger Hiss. That fight was about communism and how to oppose it. This time the Left was willing to defend conduct even G. Gordon Liddy would not have defended, and we don’t even know what the fight was about.
All we know is that the truth lost. And so did the constitutional process, which the Framers had designed so as to prevent felons from continuing to occupy the highest office in the land.
Interest groups are now campaigning on the anti-impeachment sentiment, Clinton is a fund-raising magnet, and, of course, he has “survived.” I used to think the forces of truth and honor in America would eventually prevail, if not in the Senate, then in some unanticipated and unpredictable strike-back in the future. But Clinton was not removed from office, he may not be indicted, and (despite Judge Wright’s contempt finding), he may not even be disbarred. There’s no Fred Goldman in sight.
*Ann Coulter is the author of High Crimes and Misdemeanors: the Case Against Bill Clinton (1999).