WHAT IS PERJURY?
September 14, 1998
Margaret Warner is joined by former Assistant U.S. Attorney Bruce Yannett and former U.S. Attroney Joseph diGenova to discuss what constitutes perjury.
MARGARET WARNER: Of the 11 possible grounds for impeachment outlined in independent counsel Kenneth Starr's referral to the House of Representatives, five involve allegations of perjury. Four stem from the President's January 17th deposition in the Paula Jones sexual harassment suit. The fifth stems from his August 17th testimony to Starr's grand jury. In his Jones' deposition, Starr noted, the President flatly denied that he'd had a sexual relationship, a sexual affair, or sexual relations with Monica Lewinsky.
As Starr sees it, the President was relying primarily on a semantic defense. The President, Starr said, argues that the terms used in the Jones deposition to cover sexual activity did not cover the sexual activity in which he engaged with Ms. Lewinsky. For his other false statement, Starr said, the President's response is factual. Namely, he disputes Ms. Lewinsky's account that he ever touched her in an intimate way. Starr concludes the President's denials - semantic and factual -- do not withstand scrutiny.
The President's private attorney, David Kendall, took issue with Starr on the perjury question in a rebuttal issued Saturday. "Literally true statements cannot be the basis for a perjury prosecution, even if the witness intends to mislead the questioner," Kendall wrote. "Likewise, answers to inherently ambiguous questions cannot constitute perjury, and what's more," he said, "Normally, a perjury prosecution may not rest on the testimony of a single witness." Starr charges that the President compounded his perjury before the grand jury.
While the President admitted an inappropriate intimate relationship with Lewinsky, Starr said, he also maintained that he believed his various statements in the Jones case to be legally accurate on the same semantic and factual grounds. "President Clinton's definition of sexual activity is not credible," Starr wrote. "Under any rational view of the evidence, the President lied to the grand jury."
The other three perjury allegations involve deposition testimony in which the President gave vague answers but not outright denials, like this exchange on whether he recalled being alone with Monica Lewinsky. "Question: So I understand your testimony is that it was possible then that you were alone with her, but you have no specific recollection of that ever happening?" "Answer: Yes, that is correct.
It's possible that she, I, while she was working there, brought something to me and at the time she brought it to me, she was the only person there. That's possible." Starr noted that the President admitted to the grand jury that he had been alone with Ms. Lewinsky, adding, "It is not credible that he actually had no memory of this fact six months earlier, particularly given that they were obviously alone when engaged in sexual activity." Yesterday on ABC's This Week, Kendall once again vigorously disputed the allegations of perjury in all these instances.
DAVID KENDALL: The Jones' deposition testimony is a mess. The President did not perjure himself there. He had complicated definitions. The questions were vague and ambiguous. There were objections. There was no follow-up. He was giving responses to a very narrow and technical definition of sexual relation. When he testified before the grand jury, on August 17th, he acknowledged that he had had an improper relationship with Ms. Lewinsky. That's where we are now. And there's no reason --
QUESTIONER: But he still did not say he had a sexual relationship with Ms. Lewinsky.
DAVID KENDALL: He said he had an inappropriate intimate relation. There was no doubt that he testified to a sexual relationship.
MARGARET WARNER: Though the President's testimony is not being judged in a courtroom context right now, some members of Congress have said if the President committed perjury in a legal sense, they would vote for impeachment. Here to discuss what constitutes perjury are former Assistant U.S. Attorney Bruce Yannett, who served on independent counsel Lawrence Walsh's team in the Iran-Contra probe, and former U.S. Attorney Joseph diGenova, who served as an independent counsel investigating the alleged search of then candidate Bill Clinton's passport files. Joe diGenova, what is perjury?
JOSEPH DiGENOVA: Perjury, Margaret, is taking an oath in an official proceeding and then proceeding to willfully and intentionally lie, that is, tell a falsehood about a material matter in that proceeding. And "material" means germane or very important, and not something frivolous or irrelevant to the proceeding.
MARGARET WARNER: And Bruce Yannett, is there any difference in a legal sense between perjury committed in a civil versus a criminal proceeding?
BRUCE YANNETT: No, there's no legal difference, provided an oath was taken and the testimony was given under oath, either could be the basis for a perjury prosecution. There is a difference typically in how prosecutors and even courts will view that perjury, it's criminal perjury, perjury in a grand jury, for example, that is far more often prosecuted than false testimony in a civil deposition.
MARGARET WARNER: And that brings up the point Joe diGenova - does the court look at differently say if you committed perjury in a deposition, which is a pretrial procedure, versus in a courtroom, whether it's before a grand jury, or in actual open court?
JOSEPH DiGENOVA: No. As a matter of law, the court will not make that distinction. Now, a prosecutor, in deciding whether or not to bring a case, might decide that if it happens in a deposition it's not as worthy. But the truth is, is that over the last 15 years there have been a lot of prosecutions, not as many for perjury in criminal cases. There have been prosecutions in civil cases in the United States in U.S. district courts in a number of circumstances, including cases where people lied in civil cases about having sex with someone.
BRUCE YANNETT: But, Margaret, I think it's important to point out that prosecutions, where someone testified in a civil deposition, not about the central issue of the case, but about a collateral issue, putting aside the materiality question, President Clinton's relationship with Monica Lewinsky was not central to the Jones litigation, and I think you would find very few prosecutions, if any, where in a civil deposition someone testified falsely about a secondary or collateral issue and was criminally prosecuted.
MARGARET WARNER: So, Joe diGenova, let's look now at the two or three main contentions that the President's lawyers are making. The central one is, as David Kendall put it, if the answer given by the witness is technically accurate, that witness is in the clear even if the witness intends to mislead the questioner and, in fact, leaves a misleading impression, is that true?
JOSEPH DiGENOVA: It is true, although there is case law in the D.C. area that you can also commit perjury under those circumstances. But that aside, Mr. Kendall's argument is correct. The problem he has is, is that it's an argument that has to sort of interpret the facts a certain way.
Whether or not perjury has been committed is a question of fact for the jury or the trier of fact. And that is a question which is left to a jury to decide. Mr. Kendall is making a jury argument at this point, not a legal argument. He would never have this - if a prosecutor were to bring this case in a court of law, it would not be dismissed. Today, even the question of materiality, whether or not something is important enough for a jury, is left to the jury to decide.
That can't even be dismissed anymore like it used to be. So Mr. Kendall's argument is the only argument he can make at this point, because he's stuck with the President's various statements, and he is stuck with the cumulative evidence, which Mr. Starr has put together, which tends to show that the President was not telling the truth when he answered the deposition, and when he testified in the grand jury.
MARGARET WARNER: But Bruce Yannett, staying on the question - and this really went to the President's denial of the sexual relationship or sexual relations - do you agree that if the President contends that under the definition he felt their activity didn't fit the definition and he was technically accurate in that sense, which there is a dispute about that -- but that he would be in the clear, even if they came away, anybody listening to the deposition would come away with the opposite impression than the facts?
BRUCE YANNETT: The short answer is yes. The prosecution would have to prove that the President at the time he gave his answers was deliberately knowing and intentionally lying, as opposed to adopting a very narrow construction of the definition of sexual relations, and that actually would be a difficult hurdle to overcome, I think. His definition certainly is extremely narrow and formalistic, but it is not wholly without foundation or ridiculous. And so I think part of Mr. Kendall's argument is not only would a jury not convict, but on these facts a prosecutor normally in a normal case wouldn't even bring the charges.
MARGARET WARNER: Bruce Yannett, Mr. Kendall is also arguing that a witness is in the clear if either the questions are ambiguous, or he seems to be saying if the answers are sort of ambiguous. For instance, the example we've put up on the board, he never actually denied that he remembered being alone, but he never admitted it either. He would sort of say I can't recall. He did the same thing about gifts and a number of other areas. Is Mr. Kendall right, that if there's a lot of ambiguity, again, it's pretty hard to prosecute for perjury?
BRUCE YANNETT: I think he's right about that. Certainly if the questions are ambiguous, a perjury prosecution can't stand. And, indeed, if the answers are ambiguous, provided they're truthful, it's the obligation of the person asking the questions to follow up and clear up any ambiguity, and there again I think what he's trying to say is not just make a jury argument that it wouldn't - the President wouldn't be convicted, but that a prosecutor in a normal case looking at that exchange or those kinds of exchanges would never even initiate a criminal prosecution.
MARGARET WARNER: What's your view about these answers that he gave in many cases?
JOSEPH DiGENOVA: I think if you look at the totality of the evidence that Mr. Starr has put together - and that's all we have right now -- we don't have the other side - we don't have other testimony -- it is quite obvious that a reasonable prosecutor could look at that and conclude that perjury had been committed.
It is also true that the president can try to take comfort in the question of the ambiguous question. But when he says, "I cannot remember," in light of all of the other evidence, we must all remember that H.R. Haldeman was convicted of saying I can't recall, I can't remember 50 times in the Watergate grand jury because he was a co-conspirator and the judge instructed the jury that if you're in something up to your scuppers, saying you can't recall and you don't remember, you may choose to not believe that, if you think there's no way that answer is reasonable. In this case Mr. Starr has said that these answers of "I can't recall" are simply unbelievable.
MARGARET WARNER: What about that point, Mr. Yannett? That is what Mr. Starr said, that it just strains credulity that he couldn't remember.
BRUCE YANNETT: Well, the Haldeman case that diGenova cites was an extreme example where Mr. Haldeman, if I recall, simply answered, I can't recall, I can't recall 50 times without offering any elaboration or explanation. And here the President isn't simply saying, I don't remember anything about this, but he is, in fact, testifying that he did meet alone with her and perhaps on more than one occasion. So you're really in a gray area, I think. And you don't fall clearly into the Haldeman type situation or -- nor into a clear, straightforward admission.
MARGARET WARNER: All right. And staying with you, Mr. Yannett, for the other contention by the President's lawyers, which is, if you get down to a basic factual dispute, as there is between the president and Ms. Lewinsky on one point, which is in what way did he touch her, that you could never prosecute someone for perjury based on simply the testimony of one other witness, true?
BRUCE YANNETT: It's unlikely that a prosecution would be brought on that basis. The law permits you to bring a perjury prosecution on the testimony of one witness, provided there is other corroborative evidence that exists. So I think here, though, what you have is a very private act is alleged to have taken place where only two people in the world know what, in fact, took place.
And, therefore, the perjury prosecution hinging on those specific acts and her version of it would typically not be brought. And, as Mr. diGenova pointed out earlier, I think it's very important to remember that all we have right now are Mr. Starr's conclusions and those portions of the evidence that she's chosen to put in his report. We don't have the totality of Ms. Lewinsky's grand jury testimony. And we don't have the totality of all the evidence, which apparently is in the other 20 boxes that Congress is reviewing.
MARGARET WARNER: Okay. Joe diGenova., today, Tom Daschle, the Minority Leader of the Senate, Dick Gephardt, the Minority Leader of the House, over this weekend Orrin Hatch, chairman of the Senate Judiciary Committee, all of them called on the president to stop what they called the legal hair splitting over whether he committed perjury, essentially acknowledged he did have sexual relations. In an impeachment context, is that good advice?
JOSEPH DiGENOVA: Well, I think -
MARGARET WARNER: Now, leaving a potential courtroom and going to the arena where it relates --
JOSEPH DiGENOVA: I think it's the only advice the Democrats are capable of giving the President at this point, because if it gets into the arena of a trial in the Senate, which is not a judicial proceeding as we know it, they will not have to be bound by these strict notions of whether or not X, Y, and Z constitutes perjury.
They have already laid out a marker. Right now Mr. Daschle - in what I think is a startling decision - has said don't count on pure perjury in a legal sense to protect you; that's not the way we're going to look at this. We're saying a common sense American thinks you lied. That's the standard we're going to use. At that point, I think the White House has been sent a relatively significant signal.
MARGARET WARNER: Mr. Yannett, do you agree? Was it the right signal?
BRUCE YANNETT: Well, who am I to question the political judgment of the two leading Democrats in Congress, first of all? But I will. And that is, if the president takes their advice, he will, in effect, be saying, yes, I committed perjury in a civil deposition and, more importantly, I think, I committed perjury in the grand jury. And there at that point I think any Democrat who is going to give him the benefit of the doubt and rely on the ambiguity and the questioning won't have any political cover, in effect, and may leave them with very little choice but to impose the ultimate sanction. So if I were the President, I'm not sure I would take that advice.
MARGARET WARNER: And very briefly, Mr. diGenova, would that open him up to possible criminal indictment?
JOSEPH DiGENOVA: Theoretically, yes. But I think the likelihood of that if the impeachment proceedings went forward, would be very, very small.
MARGARET WARNER: Okay. Thank you both very much.
BRUCE YANNETT: Thank you.