HE SAID, SHE SAID
March 16, 1998
President Clinton today denied allegations that he made sexual advances on a former White House volunteer. Following a background report, Jim Lehrer and guests discuss the legal implications of the charge.
JIM LEHRER: More now from Victoria Toensing, a former assistant U.S. attorney, senior Reagan Justice Department official, and Lanny Davis, former special counsel to President Clinton. He's not speaking officially for the White House tonight. Both are in private practice in Washington.
A RealAudio version of this segment is available.
March 16, 1998:
A background report on the latest allegations against the president.
March 13, 1998:
Shield's and Gigot discuss the Paula Jones case.
March 13, 1998:
Washington Post's Dan Balz talks about recent events in the Paula Jones case.
March 3, 1998:
A discussion of Clinton's sealed deposition and the second day of Vernon Jordan's testimony.
February 18, 1998:
The latest developmentsin the Clinton investigation.
February 10, 1998:
Reaction to Marcia Lewis'grand jury testimony.
JIM LEHRER: How do you see the legal side of the Kathleen Willey story?
The legal implications of the allegation.
VICTORIA TOENSING, Former Federal Prosecutor: Well, I see the White House having right now a PR and political problem and what they've done is contained their legal problems by making the president be quiet and only saying what he has said previously in a deposition; that here is their PR political problem, which is really what they're dealing with. They can't say that she wanted publicity because she was forced, she was subpoenaed to come forward. They can't say that she wanted money because she's not suing. She's a witness. They can't say that it's political because she's not a Republican or a conservative. So the old goodies that were used against her to impeach other women are not there for Kathleen Willey. Here's the problem that they have with sitting in the White House trying to talk about this right now, and that is they have to get back on the spin. You can't let twenty-four/thirty-six hours go by with such a powerful interview as this without responding. And yet, by responding, here's their political problem, and that is if they trash her too much, then they alienate a core constituency, the women's movement.
JIM LEHRER: But back to my question, which was the legal question, is the fact that Kathleen Willey said one thing and the president says another, as Trent Lott just said, that's a very serious situation just in terms of potential for perjury for one or the other. Do you agree with that?
VICTORIA TOENSING: Yes. Kathleen Willey sits on the fulcrum of both cases that are going on right now. For Paula Jones, this is a sexual assault, and it's what called a subsequent, similar act, legal terminology for it. So this would probably be admissible by most federal judges in the country, would be admissible in the Paula Jones case to show a jury that this is a pattern and a practice. In the Ken Starr criminal investigation if the president says it never happened and she says it did happen, and here's the way it happened it was a sexual assault, then that is a possible perjury case. There's also one other element, which was not really gotten into in great depth last night, in "60 Minutes," because Kathleen Willey said I'm not going to talk about it. And that is the possibility of obstruction of justice, of someone else trying to influence her to testify differently.
JIM LEHRER: Okay. We'll get to that in a minute. Mr. Davis, first, on the legal question of just who do you believe, is that a serious issue for the president and/or for Ms. Willey?
LANNY DAVIS, Former Clinton Special Counsel: Well, let me first address who do you believe, and then let me address the issue of the legal question. I have a slight difference of legal judgment from my colleague, Victoria. On who do you believe, there was a play once written a long time ago by a Japanese playwright called Rashimin. It was a play about a murderer, and it had five scenes, and each scene recreated the murder from a different pair of eyes, each pair of eyes seeing a different piece of the events. And there is a truth out of people's perceptions. Last night I saw a woman who seemed earnest, who seemed to believe what she was saying. She said something else, according to a girlfriend, including suggesting that she'd be untruthful, and that's Julia Steele. She--
JIM LEHRER: That's a friend of hers in Richmond.
LANNY DAVIS: Correct. She said last night that Julia Steele was lying. I'm sure Julia Steele wouldn't agree with that. Linda Tripp had a different impression of her being in distress.
JIM LEHRER: Linda Tripp, former White House personnel, works at the Pentagon, who may have started all of this with her taping Monica Lewinsky, et cetera.
LANNY DAVIS: Correct. Shortly after this so-called "reckless act" by President Clinton, she went back in to see the president for a cordial conversation. A year later she went back, she worked for him in the ‘96 campaign. She wrote him letters, as you just heard, saying, that I'm your best fan. I'm not going to characterize this woman. I do believe the president. He is categorically and under oath denying it, so, as far as I'm concerned, this is as mystifying as the president described it, and let's see how the facts unfold.
JIM LEHRER: As a practical matter, though, will the facts ever unfold in a situation like this when there are two people involved?
"You will never know the exact one incident because no one was there but the two of them for certain periods of time."
VICTORIA TOENSING: No. You will never know the exact one incident because no one was there but the two of them for certain periods of time. But here's what happened, and here's what every trial attorney knows; that if you develop a pattern and practice and you begin to show that there is a second person, a third person who has basically the same story, the same pattern of conduct, then that's when juries begin to listen and say, yes, it probably did occur.
LANNY DAVIS: That's a place that I respectfully disagree with Victoria on her understanding of the facts here. She states a rhetorical matter of law. The facts are that the Paula Jones case suggests that something occurred, yet, the facts are that Paula Jones described her experience when she came out of that hotel room to three people who under oath said that she was delighted, praised the president for his gentleness and his sweetness. The facts are there is no pattern or practice regarding employment discrimination or a quid pro quo of job detriment in the Paula Jones case. So you can't take one unsubstantiated charge and then say that's a pattern, or another charge that at least had a dispute effect. There is--
VICTORIA TOENSING: Let me go back--
LANNY DAVIS: --is no pattern on those two.
VICTORIA TOENSING: Let me go back to a female legal lawyer reaction here because we who do these kinds of cases see this kind of a reaction with women all the time. In fact, last night during the "60 Minutes" interview Kathleen Willey said, you know, I wondered what could I have done to have sent the wrong message? We women are born--we're trained--we're not born but we're trained with that--maybe we asked for it. And we've had that all of our lives. You saw the same kind of a reaction with Anita Hill, who followed Clarence Thomas around, and at that time, people said, well, my goodness, that's what women do because that's the power; she wasn't going to burn her bridges. And this is the same kind of reaction. All of these letters after the incident occurred mean nothing to me factually because that is--she still was trying to work out what it is that she could have possibly done.
LANNY DAVIS: But that's not entirely fair, to say "we women" and to make this a male/female thing. Men can be just as offended as I am by sexual assault and sexual harassment, no less than a woman. And just because we are male and female lawyers, I share the offense of any assault or sexual harassment. The fact is that we have to be factual here. There is a disparity in things that we've heard Ms. Willey describe. I'm not characterizing her. I think she was earnest last night, and I think we have to wait for these facts to sort themselves out. It is a fact that she wrote all these letters. I'm not interpreting why she did, or whether those events occurred. I do say that I believe the president.
JIM LEHRER: Go back to Ms. Toensing's original point that whatever the legalities of this are, the president has a problem because of "60 Minutes" and the way she presented her story last night. Do you agree with that?
"The American people are the final judges."
LANNY DAVIS: Well, I'm not sure on a political level that I agree with Victoria. We'll have to see. The American people are the final judges. I believe that Ms. Toensing and others expected the president to have a major problem when the Monica Lewinsky story first broke. And I think what we've seen in the polls is that the American people believe that job performance is the most important criteria for judging the president. They also have been turned off by excessive coverage by the press that was not factually based, and finally they have been repelled by a prosecutor that has taken an alleged false statement. Now we have two alleged false statements--and they are just alleged--in a civil proceeding, in discovery that hasn't been completed yet, before trial, in turning that in to a criminal prosecution with a grand jury subpoena, calling in witnesses, including witnesses that talked about things to the press. You're seeing the American people showing a great wisdom, and I believe, Jim, that at the end of the day on Ms. Willey that the American people will put in perspective what is factual, what is in dispute, and will hold judgment until all the--
VICTORIA TOENSING: You know that if the president's lawyers thought that Ken Starr had done anything illegal, they'd be right down there before Norma Hollaway Johnson, who doesn't stand for any messing around--
JIM LEHRER: She's the district judge overseeing the grand jury, right?
VICTORIA TOENSING: --who is the chief judge overseeing this whole investigation. The fact that they want to play it in a political arena, rather than a legal arena, tells me a lot.
JIM LEHRER: Let me ask you this, Ms. Toensing. Some of the commentary since that interview last night is that, oh, Kathleen Willey is different than all the others. Do you agree with that?
VICTORIA TOENSING: I don't think she should be, because I think there are compelling facts, for example, with Paula Jones. How did she end up in that hotel room? As a trial lawyer, to me, that's the most compelling fact for her truthfulness in that something bad happened in that hotel room. How did a twenty-some-year-old young woman get in the governor's hotel room? But what I'm pointing out and what I pointed out at the very beginning of this interview is all of a sudden there is now a witness against whom they cannot use all the old standards.
JIM LEHRER: So you think this will hurt the president much more than the--than the prior things, whether it's Monica Lewinsky, Paula Jones, or whatever?
VICTORIA TOENSING: Because I think they're stymied right now in how to deal with this. This is somebody that they can't attack in the way they have the others.
"I think the American people are withholding judgment, but the most important message so far...is that they're looking at job performance, and that counts more than this."
LANNY DAVIS: I heard these comments at the beginning of the Lewinsky story. I heard talk of impeachment; I heard talk about political meltdown. The American people are a lot wiser and a lot fairer than a lot of politicians and pundits give them credit for. I think people are withholding judgment. I think they're waiting to see if the facts come out. The president is very clearly denying this. There are impressions here that may be wrong. There are stories that don't fit. I think the American people are withholding judgment, but the most important message so far, Jim, is that they're looking at job performance, and that counts more than this.
JIM LEHRER: Do you think they should withhold judgment on Kathleen Willey?
VICTORIA TOENSING: I think they should withhold judgment until all the facts come in. I would like an agreement, though, right now from Lanny that if there was a relationship with a 21-year-old intern, that that is not just a personal matter; that is wrong; that if there was this kind of sexual assault on Kathleen Willey, it was wrong; and that the debate should be really over what are the facts in the case, not whether it's none of anybody's business.
LANNY DAVIS: We're both lawyers, and I respect Victoria very much. I don't engage in hypotheticals with names in them, but I'll say generically, sexual assault and sexual harassment are offensive; they're wrong; but they must be proven in court. And there are many innocent men accused of sexual harassment and assault who are convicted in the headlines, and we have to wait until the final verdict comes in before we convict them. But I agree with Vicki, it's a horrible thing for sexual assault and sexual harassment to occur in this society.
JIM LEHRER: We have to go. Thank you both.