THE PERJURY ISSUE
September 21, 1998
One of the major issues surrounding President Clinton's appearance before Kenneth Starr's grand jury is whether he committed perjury. Two former federal prosecutor's discuss how the testimony looked to them.
JIM LEHRER: Now to a discussion of the legal issues involved and to Margaret Warner.
A RealAudio version of this segment is available.
Listen to audio excerpts of the President's videotaped grand jury testimony.
September 18, 1998:
Shield and Gigot analyze the partisan struggle over the release of grand jury evidence.
September 18, 1998:
How is the world media covering the Lewinsky matter?
September 17, 1998:
A discussion on the videotape debate.
September 16, 1998:
Senator Daschle discusses President Clinton's problems.
September 15, 1998:
Two members of the House Judiciary Committee debate releasing President Clinton's videotaped testimony.
September 14, 1998:
A discussion on the media's coverage of the Starr report.
September 11, 1998:
The Starr report and White House rebuttal.
September 11, 1998:
Mark Shields and Paul Gigot debate the potential impact of Kenneth Starr's referral to Congress.
September 11, 1998:
Two former federal prosecutors examine the legal issues presented in the Starr report.
September 10, 1998:
What is the constitutional basis for impeaching a president?
September 9, 1998:
Kenneth Starr drops off his case to the House.
September 3, 1998:
Four former senators discuss whether the president should step down.
Browse the NewsHour's coverage of Starr investigation, the White House and Congress.
The House Judiciary Committee.
Ms. Morrison: "He got a lot of breaks that the ordinary grand jury witness would not get."
MARGARET WARNER: And we get the perspective now of two former federal prosecutors. New York attorney Bruce Yannett; he served on independent counsel Lawrence Walsh's team in the Iran-Contra probe. And Washington attorney Alexia Morrison. She served as independent counsel from 1986 to 1988 investigating whether a senior Justice Department official gave false testimony to Congress. Alexia Morrison, you've both faced hostile witnesses before.
What kind of a witness did President Clinton make?
ALEXIA MORRISON: Well, he got a lot of breaks that the ordinary grand jury witness would not get. And this was very unlike most grand jury appearances, and I don't mean because of the setting or the fact that he was allowed to have his lawyer with him, but undoubtedly because of the time constraints and probably because of the deference in which we all hold the office of president. There was not the kind of demand that most prosecutors would make of a witness for specific facts.
The president got to define himself out of the crime of perjury, if you will. He said, here's what it meant to me, and I didn't do it, and I'm not going to talk about the facts underlying my definition of what really happened. And so, unlike most grand jury witnesses, there will not be, at least as a result of this appearance, an ability for the prosecutor or the Hill or anybody else to make a judgment as to whether or not, given what he will admit that he did, he should have acknowledged something more than he did in the Paula Jones' definition – or deposition.
MARGARET WARNER: Mr. Yannett, what kind of a witness do you think he made, and do you agree with Ms. Morrison that he wasn't like a typical witness really in any way in terms of the conditions under which he testified?
BRUCE YANNETT: Well, certainly, I do agree it wasn't normal. I think simply because the proceeding was videotaped, I think what videotaping typically does is put all the lawyers on their best behavior. And what you saw from the Starr office was at times a lack of follow-up questions and that you didn't see the type of very hostile, very aggressive questioning that one would expect from some of the prosecutors in that office and from other prosecutors in the confines of the grand jury, when there are no lawyers present. But overall, I have to say I found this to be surprisingly favorable to the president, given the buildup that we saw in the last few days before the videotape was actually played. We didn't see temper tantrums. We didn't hear profanity. He didn't storm out of the room, and for the most part, I think he was struggling to answer the questions truthfully and in a light as favorable to himself as he could. And I would say overall, if this was going to be played, it was a net positive for the president.
The perjury question.
MARGARET WARNER: All right. And staying with you for a minute, Mr. Yannett, let's go to the perjury question, because many members of Congress have said that's what they're really looking at; did he commit perjury? After watching this, do you think that he liked under oath before this grand jury, as Ken Starr said?
BRUCE YANNETT: Well, you know, I think the issue of perjury requires that he have intentionally lied about something that's significant, and the perjury allegations by Mr. Starr as to the grand jury, as distinct from the Paula Jones deposition, really relate to this definition of sexual relations, and a couple of fairly minor points that the Starr prosecutors never really followed up on in the deposition. For example, the Starr Report says that the president perjured himself by saying that the relationship began in 1996, rather than in late 1995. There wasn't a single question during the four hours about when the relationship began and whether it was 1995 or 1996. So I would dismiss that out of hand. As to the definition of sexual relationship, you know, the president's defense really came down to "I didn't intend to mislead anyone; I was, in effect, at war with the Paula Jones legal team; and I wasn't going to give them an inch; I wasn't going to volunteer a thing. So I adopted what I believed was a reasonable but extremely narrow definition of that phrase as it was defined in the case." And I think – I think he helped himself on a legal sense, because proving that he intentionally lied would not be easy.
MARGARET WARNER: How do you think he did on this question of whether he had intended to lie in the Paula Jones deposition, which of course is the basis for Ken Starr saying he lied to the grand jury?
ALEXIA MORRISON: Well, I think there are two aspects to that, that you have to take into account: One is the fact that he did not deny any of the facts underlying the allegations against him. In other words, he didn't ever say, no, that didn't happen, I take issue with that, Ms. Lewinsky is not telling you the truth. On the other end --
MARGARET WARNER: Excuse me – but is that important legally? In other words, if this was a regular trial, why is that important?
ALEXIA MORRISON: Well, it would be important, because those are the facts on which the perjury allegation is being made. On the other hand, he has left himself an awful lot of wiggle room because of his refusal to talk about what actually happened, he still has time at some subsequent proceeding to take issue with those facts, because he didn't say what happened on a particular date when he was with Ms. Lewinsky, or, for that matter, what didn't happen in terms of the way she has described it. So we're left with a lot of questions, it seems to me, as to whether or not he will at some later time say, oh, well, of course, that's just completely not what happened, and the facts really are as follows. And we're also left with a substantial question, it seems to me, as to whether or not he has adequately explained his intent. I think that Bruce is right in the sense that --
MARGARET WARNER: His intent. Now, in the Jones' deposition –
ALEXIA MORRISON: Yes. What intent did he have? What was he thinking? He spent a lot of time on that in trying to explain away – he stayed away from the facts and went to here's what my mind set was; here's what I had on my mind at the time I answered those questions in an effort to explain what he was thinking and what he wasn't thinking. One area that was not covered at all is his answer in the Jones' deposition that he couldn't really recall whether he'd ever been alone with Ms. Lewinsky. I think it's pretty clear that he was very much alone with her, that it wouldn't have been hard for any ordinary witness to remember that they had been alone, and he wasn't really nailed down so much on that by the questioning before the grand jury, as he was allowed to give an explanation of oh, well, alone doesn't mean alone; alone means there were other people in the building. And that really gets back to the point I made earlier, which is, we don't really have him nailed down on some of the critical pieces of information.
Mr. Yannett: "I think you would see in a typical hotly contested civil litigation, both sides giving legally correct, factually accurate answers, without being helpful to one another."
MARGARET WARNER: Bruce Yannett, one of the points he kept making in this grand jury testimony about answers he'd given in the Jones' deposition was that it was not his responsibility to be helpful to the Jones lawyers, truthful but not helpful, is that true, is that correct, in terms of if you're trying to prove perjury or not?
BRUCE YANNETT: I think absolutely correct. I think you would see in a typical hotly contested civil litigation, both sides giving legally correct, factually accurate answers, without being helpful to one another. You know, keep in mind from the Paula Jones side, they thought the president sexually harassed Ms. Jones and they were entitled to collect millions of dollars. From the president's side, he thought the allegations were completely bogus, politically motivated, and the whole purpose of this exercise was to embarrass him. So that's his mind set going into the deposition. And it's quite common for people not to be helpful to one another in depositions. And really the burden is on the lawyer asking the question to ask precise questions and to ask follow-up questions if they get an ambiguous answer.
MARGARET WARNER: Do you agree with that?
ALEXIA MORRISON: I do, except that you still have to give a complete and candid answer, and in this case I think it's fair to say that not once or twice or, you know, every once in a while there was a pattern of evasive answers, that he now with 20/20 hindsight is able to try to explain away, but when you put them altogether, you have to then ask is there a pattern here overall that demonstrates some mind set inconsistent with his attempt to explain his intent.
MARGARET WARNER: You mean, in other words, a mind set to mislead? Is that what you mean?
ALEXIA MORRISON: Yes. Yes. For example, I think one of the things that was very interesting in this testimony is when the Starr folks asked Mr. Clinton early on in the deposition about a statement made by his lawyer in the Paula Jones case, Mr. Bennett, that no sex of any kind had taken place, and the president said well, I wasn't listening to what my lawyer said, I didn't pay any attention, one has to ask behind that, well, how did Mr. Bennett get the impression that he could say that in the presence of a federal judge and on a record that he would say that there was no sex of any kind – and seem by his statement to be defining the Lewinsky deposition to have included that broad-based a statement. And that kind of broad-based statement seems to be consistent with what he has said to some of his aides.
BRUCE YANNETT: Margaret.
MARGARET WARNER: Yes. I want to turn to obstruction, but go ahead, quickly.
BRUCE YANNETT: Real quick, I thought the president made one interesting point in his defense, which was the comment he made that look, I admitted in the deposition that I had an inappropriate sexual relationship, as it was defined by the Jones lawyers with Gennifer Flowers. So it shows that I was applying this definition, as I understood it, across the board in a consistent manner. And I thought actually that was an interesting point.
An emerging pattern of obstruction?
MARGARET WARNER: All right. Let's turn, Alexia Morrison, to the obstruction charges. There are three of those that all stem from his – the president's conversations with and efforts on behalf of Monica Lewinsky once she'd been called in the Jones case. The president insisted today that all of those were innocent, trying to help her, whether it was encouraging her to file an affidavit, so she might not have to testify, helping her get a job, and so on, that he didn't mean to conceal the gifts, just compressing all that for you, was he persuasive as a witness on that point that he was not trying to obstruct?
ALEXIA MORRISON: I don't think he was persuasive to those of us who would look for specific answers. What he said was what he has always said, which is, I never asked anyone to lie. I don't think anyone in America believes that the president would have ever said to anyone directly, "I want you to lie." So the real question there is did he say things to people with the intent that the impression that they would get from what he said would be, I want you to lie, or did he do that in combination with other acts that were suggested that he was taking affirmative actions to encourage someone to tell the story as he would like to have told? And so it's a much more subtle question than the testimony that he gave, and accordingly, I don't know that much light was shed on it by his grand jury testimony. He never asked anybody to lie. That given, I think we're left back with the pattern of activity, the closeness in time of the discussions that he seemed to forget during the Jones' deposition and the efforts to get her a job and failure to recall the Jordan conversations, and what does that mean to people when you put the pattern together?
MARGARET WARNER: When you put the pattern together, Bruce Yannett, and what the president said on all those points, what did you come away with?
BRUCE YANNETT: Well, you know, going back 10 days ago, when I read the Starr Report, my belief at the time was that the obstruction allegations in the Starr Report were the weakest aspect of the report. And, you know, I think if you look at the totality of the evidence now, which is the evidence presented by the Starr Report, plus the president's testimony, what essentially have is no clear-cut obstruction case. Indeed, if you look at Ms. Lewinsky's testimony and Betty Currie's testimony and Vernon Jordan's testimony and the president's testimony, no one is coming out, as I understand it, and saying, the president directly instructed me to do anything or to lie or to conceal gifts, or the other kinds of indicia of an obstruction that you really would expect to see in a case that was ever going to be prosecuted. You know, I think the president certainly didn't hurt himself on the obstruction issues, and as to the gifts, for example, he flat out denied telling Betty Currie to call Monica Lewinsky. There was no ambiguity there whatsoever. So I think that started out before he testified, before we saw the testimony, as the weakest part of their case, and I don't think it changed today.
ALEXIA MORRISON: Again, Margaret, those of us who have spent our lives looking at evidence and closely analyzing words and meanings, what the president said about the gifts was I told her that you have to give them whatever you've got. And no one put him to the test really directly, requiring an answer as to whether or not he ever said anything or suggested in any way that if she didn't have them, she didn't have to give them up. And that's really the crux of that allegation, it seems to me. So, again, the piece that he denied is probably something that we would never expect that he would admit and probably wouldn't have ever happened -- don't ever give those gifts to the prosecutor under subpoena – turn them over to Betty Currie – we've got to all assume that it would have, if it happened, a much more subtle pattern of conversation by the president, and he really wasn't called to answer that question.
MARGARET WARNER: All right. Well, thank you both, Bruce Yannett and Alexia Morrison.