What Is Clinton’s Perjury Defense?

President Clinton still insists he has not committed perjury. Given what we know, is that possible? What exactly is his argument?

Until last week, the president never backed up his assertion of innocence with any details. During the House Judiciary Committee hearings, though, Clinton’s legal team released a 184-page document which defends the president in highly specific terms.

First, a brush-up on the definition of perjury. Perjury means (a) knowingly (b) making a false statement (c) about material facts (d) while under oath. It’s not perjury if you honestly believe what you’re saying is true, or if your lie is irrelevant to the issue you’re under oath about. Moreover, the Supreme Court has ruled that it’s OK for “a wily witness [to] succeed in derailing the questioner–so long as the witness speaks the literal truth.” Disingenuousness and misleading (but not technically inaccurate) answers are not perjury. Finally, you’re off the hook for perjury if a subsequent statement in the same proceeding corrects an otherwise perjurious statement.

Even so, does Clinton have a case? Here are the accusations and Clinton’s replies:

Perjury #1A: Undefined Sex.

Paula Jones’ lawyers asked whether Clinton had had a “sexual affair” with Lewinsky. He answered no. His lawyers argue that Clinton believes “sexual affair” means “sexual intercourse.” If this is indeed what Clinton believes–and since no one has alleged that Clinton and Lewinsky had sexual intercourse–his testimony wasn’t perjurious. Clinton’s defenders have pointed to several dictionaries to show that his definition is not completely eccentric. Moreover, Lewinsky says Clinton told her he belives sexual intercourse and sexual relations to be equivalent terms.

Perjury #1B: Defined Sex.

Paula Jones’ lawyers handed Clinton a now famous definition of “sexual relations”–“contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of a person with an intent to arouse or gratify the sexual desire of any person”–and asked whether he’d had these sort of relations with Lewinsky. Clinton answered no. Kenneth Starr asked Clinton the same question before a grand jury, and again Clinton answered no.

Clinton’s lawyers point out that “this narrow definition did not include certain physical acts.” This, of course, is an indirect way of saying that it doesn’t include oral sex. But what about Lewinsky’s claim that Clinton touched her breasts? Clinton’s lawyers admit that if Lewinsky is correct then Clinton perjured himself. But they point out that, under Federal law, one person’s testimony is not enough to prove perjury. (The Supreme Court has ruled that perjury cannot be proved by “an oath against an oath.”) So Clinton’s lawyers are technically correct in concluding that “this is not a case of perjury … the factual record would not support a prosecution for perjury.”

The emphasis here is less on I-didn’t-do-it than on you-can’t-prove-it.

Perjury #2: Alone with Monica.

Paula Jones’ attorneys asked Clinton whether he was ever alone in a room with Lewinsky. Clinton answered “I don’t recall.” Later Jones’ attorneys asked whether it was possible that they were alone, even though Clinton had no specific memory of such an event, and Clinton answered yes.

Clinton’s lawyers say that “the president did not testify that he was never alone with Ms. Lewinsky.” The lawyers say the second comment–that they might have been alone together even though he doesn’t remember it–makes this clear. He was just saying he doesn’t recall. But saying you don’t recall something when you really do is a false assertion of fact and therefore is perjury just as much as denying that same something outright. The only difference is that it is a lot harder to prove.

Perjury #3: Giving and receiving gifts.

Paula Jones’ attorneys asked Clinton whether he had given or received gifts from Monica Lewinsky. He said he’d definitely given her a gift from the Black Dog, a store on Martha’s Vineyard. He said he wasn’t sure whether he’d given her a book, and he’d received gifts from her “once or twice.” We know that many more gifts were exchanged.

Clinton’s lawyers reply that he admitted to giving and receiving some gifts. They contend this is the only “material” issue. Of course not everyone agrees about what is material, but it’s a reasonable legal defense–lies must be important to count as perjury. Clinton’s lawyers also argue that they weren’t willful falsehoods–that Clinton believed he was telling the truth. The argument is that if he’d wanted to lie about the gifts, he’d have denied receiving any at all. So the fact that he admitted to a few suggests that he intended to be truthful. Another argument, which Clinton’s lawyers do not make but others have, is that it’s technically true to say you have received one or two gifts when you have received a total of 40.

Perjury #4A: Conversations with Lewinsky

Jones’ attorneys asked Clinton to say when he last met with Lewinsky. Clinton said he wasn’t sure, but it was “probably sometime before Christmas.” Clinton was also asked if, at that time, she said she had been subpoenaed. (The questioners were trying to establish that Clinton pressured Lewinsky to lie.) Clinton said, “I don’t know.” It is undisputed that, at their last meeting on Dec. 28, Lewinsky said she’d been subpoenaed.

Clinton’s lawyers maintain that it’s unclear whether Clinton was even talking about the Dec. 28 meeting when he said “I don’t know.” Since he had claimed not to remember any meeting after Christmas, it’s possible the “I don’t know” referred to their last meeting before Christmas, where he and Lewinsky in fact didn’t discuss her subpoena.

Perjury #4B: Conversations with Vernon Jordan about Lewinsky

Vernon Jordan testified before the grand jury that he had two conversations with Lewinsky in Dec. 1997, and that he told Clinton about both. Both times, Jordan says, he mentioned that Lewinsky had been subpoenaed. Jones’ lawyers asked Clinton whether anyone other than his attorneys had told Clinton about the subpoenas. Clinton said “I don’t think so,” then another question was asked, and Clinton replied “Bruce Lindsey …[was] the first person [who] told me she was [subpoenaed].”

Clinton’s lawyers claim that this second answer (“Bruce Lindsey … [was] the first…”) didn’t answer the intervening question but finished the first answer (“I don’t think so”) instead. And since the fact that Bruce Lindsey was the first to mention the subpoena isn’t inconsistent with Jordan’s testimony–Jordan might have been the second or third–the lawyers say it’s not proof of perjury.

Next question?

Explainer thanks Robert Luskin of Comey, Boyd & Luskin in Washington, D.C., for his help.