THE PRESIDENT & THE LAW
January 22, 1998
On day two of the investigation into President Clinton's possible cover-up of a sexual affair, Whitewater independent counsel Kenneth Starr says he'll move quickly to get to the truth. After a background report on the events, experts debate the legal ramifications and the possibilty of impeachment.
PHIL PONCE: We get answers from NewsHour regular Stuart Taylor, senior writer with the National Journal and contributing editor to Newsweek. Joining him are Dan Webb, a former special prosecutor during the Iran-Contra investigation, and Richard Ben-Veniste, an assistant special prosecutor during Watergate, and the former Democratic counsel during the Senate Whitewater probe. Gentlemen, welcome.
A RealAudio version of this segment is available.
January 22, 1998:
A report on the latest developments in the investigation.
January 22, 1998:
Presidential historians and experts put the brewing crisis in perspective.
January 21, 1998:
President Clinton responds to charges that he may have had an affair with a former White House intern.
January 16, 1998:
Mark Shields and Paul Gigot discuss the impact of the Paula Jones case.
May 27, 1997:
A discussion on the ramifications of the Paula Jones case on the office of the Presidency.
January 13, 1997:
Paula Jones's case goes before the Supreme Court.
Browse the NewsHour's coverage of the U.S. Presidency and law.
Stuart Taylor, first, some basic concepts. The President's good friend, Vernon Jordan, said that he has been subpoenaed to appear before a grand jury. What happens in that kind of a context? Is it just like appearing before a criminal grand jury?
Perjury in the context of a grand jury.
STUART TAYLOR, National Journal: It is a criminal grand jury. That's the only kind of grand jury there is. The grand jury is a group usually of 23 citizens, although they're not always there, in a room, you know, prosecutors running the show, and the witness walks in and testifies, they exist almost exclusively, if not exclusively for the purpose of conducting criminal investigations and returning indictments. Mr. Jordan will walk into the room. His lawyer will not be allowed to accompany him. He can wait outside. Mr. Jordan will have the option of going outside to consult with his lawyers as often as he wants. The prosecutor asks questions. Mr. Jordan has the option of claiming the Fifth Amendment. I think he made it rather clear today that he would not do that and that he would make a statement consistent with what he said--what we just saw. And then the prosecutors will ask him lots of detailed questions, presumably based on all the little things they think happened between this young woman, Monica Lewinsky, and the President and Vernon Jordan.
PHIL PONCE: And basic terminology, perjury in the context of this investigation.
STUART TAYLOR: If anyone perjures him or herself at a grand jury, it's a federal crime punishable, I think, by five years in prison, and if anyone perjures themselves in a civil case, in a civil deposition, in a filing in court, in the Paula Jones case, for example, in President Clinton's deposition in that case last Saturday, for example, that is, at least technically, a federal crime but very rarely prosecuted--perjury in civil cases.
PHIL PONCE: So even though it stems from testimony given during a deposition, that's still perjury and that's still a federal crime?
STUART TAYLOR: And it's been rarely prosecuted.
Trying to track subornation of perjury.
PHIL PONCE: And as far as subornation of perjury, what does that mean?
STUART TAYLOR: That basically means trying to get someone else to perjure themselves, especially if you succeed, and the operative question here is: If in fact--as has been alleged--Monica Lewinsky was urged to lie by the President and/or Vernon Jordan, that would be subornation of perjury. If she was urged to lie to--in a legal proceeding--it wouldn't be subornation of perjury if she was urged to lie to you or me, for example. It's quite legal to lie to the press.
PHIL PONCE: Dan Webb, isn't it--isn't that a fairly difficult charge to prove, subornation of perjury? Aren't conversations inherently ambiguous?
DAN WEBB, Former Iran-Contra Prosecutor: They are, and perjury is often a very difficult crime to prove. That's why I suspect here that this is probably going to end up to be much ado about nothing. I'd be very surprised if anyone's ever going to establish some day that someone with the reputation of Vernon Jordan or the President of the United States encouraged this woman to give a false affidavit. But we'll have to--let's take a deep breath and let's see what the facts are. But as a prosecutor for many years, perjury cases are difficult to make. Suborning perjury are even more difficult to make. Conversations are abstract; they're difficult to pin down; and certainly these recorded conversations between Miss Tripp and Miss Lewinsky are certainly not going to be any evidence as far as Vernon Jordan or President Clinton are concerned. And so we're a long ways away from seeing any evidence that would implicate those two gentlemen in any effort to obstruct justice or suborn perjury. But let's take a deep breath and let's see what the facts are.
PHIL PONCE: Richard Ben-Veniste, how tough is it to prove some of the accusations that have been flying around?
Behind the speculation.
RICHARD BEN-VENISTE, Former Sen. Whitewater Democratic Counsel: Well, I couldn't agree with Dan Webb more. We have this syndrome of immediate gratification. As soon as there's an allegation, we have many pundits out there taking to its absurd conclusion. What we need to do is look at what the facts are. And, in fact, the material that's been leaked to the press over time, either by Miss Tripp, who has an interesting history of being adverse to this administration, and other material that we've seen come from sources which may not be appropriate to be leaking the information, we've got to stop and see where the evidence is, and then start coming to some conclusions. But right now the President of the United States has denied any such involvement. Mr. Jordan has denied any such involvement. We have not heard from Ms. Lewinsky, other than by speculation.
PHIL PONCE: Mr. Webb, how is it that an independent counsel, whose original charge was to investigate Whitewater, an event that happened 10 years ago, now has the authority and the jurisdiction to look into these charges?
Does Starr have the jurisdiction to investigate Lewinsky?
DAN WEBB: Well, I think what happened, from what I understand from press accounts, is fairly routine. Now, Mr. Starr went to the independent counsel court and got his jurisdiction expanded to investigate this allegation against the President. I think that was the legitimate thing for him to do under the circumstances, and I think Attorney General Reno acted responsibly. Clearly, the Justice Department cannot address this type of allegation. The allegation has been made--Miss Tripp, for whatever her motivations are, has recorded these conversations, and so, you know, you have to look into it. Mr. Starr's been the independent counsel looking at these other events, and, therefore, for the independent counsel court to expand his jurisdiction to look at this allegation, it's a rational thing to do, and Mr. Starr said today he is going to get to the bottom of it very quickly. Let's hope he does. Let's hope this is simply a cloud that can be removed. Then the President can go on governing this country. And let's get to the bottom of it quickly, and I suspect that's what Mr. Starr intends to do.
PHIL PONCE: Stuart Taylor, is this a rational extension of the independent counsel's jurisdiction?
STUART TAYLOR: Well, it's certainly very different than land deals in Arkansas; however, as I understand what happened, is Linda Tripp, the woman that has these tape recordings, which I'm told constitute more than 20 hours of very vivid conversations during which Monica Lewinsky describes not only a sexual relationship with the President but the President and Vernon Jordan asking her to perjure herself, she took them to Kenneth Starr on January 12th. She dumped them in his lap, more or less, not him personally, but his staff, and said, here, I have evidence of terrible things; please investigate it. He immediately did some investigating, sent her to talk with a hidden microphone the next day to Monica Lewinsky again. FBI agents watched this for three or four hours. The day after that he went to the attorney general, as the statute--as is proper, and said, I have new evidence; please ask the court to expand my jurisdiction. The attorney general--an appointee of the President--agreed, did it. The court agreed, did it. I think under those circumstances it's a little hard to challenge Starr's jurisdiction.
PHIL PONCE: Mr. Ben-Veniste, how about that, the issue of the tapes? In this case Miss Tripp, reportedly, came with these tapes to the independent counsel. What use can a prosecutor make of evidence that's obtained by a private citizen in this manner?
RICHARD BEN-VENISTE: Well, before we get to that, let me address the question of which comes first, the jurisdiction or the gathering of evidence. Here it seems that the independent counsel went out to gather evidence before his jurisdiction was expanded. Earlier this year--or last year actually, there was a flap over whether he had been investigating the President's personal life prior to the time that he assumed the presidency. You recall the business about questioning the state troopers from Arkansas. And there, at that point, Mr. Starr said, no, he wasn't involved in that, he wasn't a surrogate in the Jones civil case, trying to get evidence to Miss Jones and her attorneys. But here we have, again, an instance--and we don't know the facts yet--of Miss Tripp inserting herself into that proceeding and at what point she provided evidence to Mr. Starr and at what point she first contacted them and said she was making these surreptitious recordings we don't really know. We're getting all of this secondhand by hearsay now. Sooner or later, I suspect, everybody is going to be under oath, and we'll have a little better view of what actually happened, including the relationship between Newsweek and the independent counsel's office. All of this, I think, as we sit back and let the facts unfold, will be interesting to watch.
Private citizens and public tapes.
PHIL PONCE: Mr. Webb, what is your opinion on whether or not a prosecutor can use tapes that a private citizen has made, perhaps having tape-recorded them secretly?
DAN WEBB: Tape recordings, first of all, very likely might be admissible into evidence. There's an evidentiary question as far as Miss Tripp can probably testify that she recorded the conversations; they accurately reflect the conversations that took place between her and Miss Lewinsky; and, therefore, those conversations could be admitted into evidence; however, I don't know in some states it is illegal to do what Miss Tripp did. It is illegal to record someone's conversation only by having your own one-party consent without the other party consenting. And apparently Miss Lewinsky did not consent. And she obviously was deceived by her allegedly good friend, Miss Tripp, and so, therefore, if--it depends on the state these conversations were recorded in, but if Miss Tripp recorded these conversations, in many states she would have committed an illegal act, and she would be subject to being indicted.
RICHARD BEN-VENISTE: Dan, I'll bet you a nickel that Ken Starr does not prosecute Ms. Tripp for making an illegal recording under the laws of Maryland.
DAN WEBB: Now, that could be, but the question, Richard, would then be whether or not they're admissible. In other words--
RICHARD BEN-VENISTE: That's a separate issue.
DAN WEBB: If the tapes were illegally recorded by Miss Tripp, that will create an evidentiary problem for Mr. Starr, and we don't know the facts of that. And, by the way, if Miss Tripp recorded these conversations illegally, Mr. Starr doesn't get to make that decision. Someone will have to make that decision under Maryland or D.C. law. Like, for example, in Illinois, one party consent is not enough to record conversations, and Miss Tripp would be under a grand jury investigation, herself, right now.
What lies ahead for the President?
PHIL PONCE: Stuart Taylor, does an independent counsel have the authority to bring a criminal prosecution against the President?
STUART TAYLOR: That's a much-debated point. It's never been resolved in constitutional law. Legal scholars disagree on it. There is disagreement on it within the Watergate special prosecution force. The view of the United States Justice Department since the Watergate era has been that the only way a president can be proceeded against if he's committed a crime is through impeachment; that it would be unconstitutional for any prosecutor to seek an indictment. I believe the Watergate special prosecutor had a different view of the bottom line legally but thought the prudent course was impeachment, not indictment, and I think that's a widely shared view among a lot of lawyers but not all of them.
PHIL PONCE: Mr. Ben-Veniste, is anything that is found in any of these accusations in your opinion, do they rise to the level of high crimes and misdemeanors as set forth in the Constitution, as justifying impeachment?
RICHARD BEN-VENISTE: Well, I certainly would not minimize the seriousness if all of the allegations swirling around were some day proved to be true. And we are very far from that point. But whether they would justify--even if true--the impeachment of the President of the United States is a much different question. Whether the country would go through the trauma of an impeachment of a President under such circumstances as these, whereas Dan Webb and Stuart have both pointed out, you know, the evidence to make these charges would, at best, be very difficult to prove conclusively, whether we go through the trauma of an impeachment for these reasons I think is very questionable.
PHIL PONCE: And very quickly, Mr. Webb, does anything you've heard sound like an impeachable offense?
DAN WEBB: Well, listen, if anyone--look, the President is not above the law. He does not have executive immunity --there's no evidence that he did--but if any given president committed a criminal act, such as obstructing justice, I think under the constitutional definition of high crimes that that probably would qualify. There's an interesting legal issue, though, as to whether that's the only exclusive way that you can go after the President because under the U.S. versus Nixon case it's possible that you could not indict the President while he's in office and that he would have to be impeached before you could go through a criminal trial, which means that the House of Representatives would have to return the bill of--what they call an article of impeachment by a majority vote, and then it would go in front of the Senate for a full trial. It's never happened. Andrew Johnson was impeached, was not found guilty in front of the Senate. It's never going to happen, and for us to be talking about impeachment of Bill Clinton over this, at this early stage is--it's a little silly.