Is Civil Perjury Punishable?

In the civil suit brought against him by Paula Jones, President Clinton said under oath in a deposition that he never had sex with Monica Lewinsky. Clinton maintains, on a legal technicality, that this was not perjury. His supporters argue that even if it were perjury, in normal circumstances–i.e., without an overzealous special prosecutor–no one would ever be prosecuted for what Clinton did. Is that true?

The best answer is that civil perjury is certainly illegal, but rarely prosecuted. Some lawyer-pundits initially said that it is never prosecuted. But one month into the scandal Stephen Gillers, an NYU law professor writing in the New YorkTimes, offered eight instances of the Clinton Justice Department prosecuting people for lying in civil cases. Gillers also found a 1994 federal circuit court opinion which said that lying in a civil case is no better than lying in a criminal case–both are serious matters. (A rhetorical flourish by one circuit court is not the law of the land, but it is worth noting.) The Washington Post followed with a story saying there have been at least 25 federal prosecutions of civil perjury (the Post gives no time frame). Wall Street Journal columnist Paul Gigot uses the number 12. Senator Orrin Hatch cites 10.

Whatever the number, it is a tiny fraction of the lies–even the obvious lies–told under oath in the tens of thousands of depositions taken every year in federal civil suits. So who does get prosecuted? One case involved an expert witness who lied about where he received his medical degrees. Another concerned a man paid $20,000 to lie in the deposition. These lies were part of efforts to corrupt the judicial system itself. Several prosecutions involved people who lied about their finances to creditors in bankruptcy cases. Clinton’s lie at issue (if it was a lie) involved a sexual dalliance–and one unrelated to the actual subject of the lawsuit. In fact, the judge in the Paula Jones suit ruled the Monica Lewinsky business immaterial, and ultimately ruled the Jones suit itself invalid. Prosecution for perjury in these circumstances, Clinton supporters say, would be ludicrous.

But the editors of the Weekly Standard think they’ve found a case analogous to Clinton’s which ended up in a perjury prosecution. A Boise Veterans Affairs psychiatrist confessed her love to a soldier under her care then proceeded to perform oral sex on him. They had an affair. Several months later the soldier brought a civil case for sexual abuse against the psychiatrist. (That’s right–Clinton says he didn’t have sex when receiving oral sex; this fellow says he was sexually abused when he received the same.) The psychiatrist denied the oral sex but taped phone conversations suggested otherwise. The psychiatrist eventually pleaded guilty to perjury in the civil case and last month she was sentenced to six months of house arrest.

Clinton supporters think this case isn’t analogous. The psychiatrist lied about the heart of the case–did she perform oral sex on a patient?–whereas Clinton at worst lied about a peripheral matter. One reply is that, even if prosecutions for lying in a civil case are rare and somewhat random, it’s not up to the liars to decide what lies are prosecuted. Another reply is that it’s not unreasonable to hold the president of the United States to a higher standard than the ordinary citizen.