Topic: White Water

THE PERJURY PRECEDENT

The New York Times
December 28, 1998 Stephen Gillers

President Clinton lied. He must admit it. No respectable Senate deal is possible unless he does, no matter how hard that may be. Everything he did was legal, the President has insisted, because his private definition of critical words -- "is," "alone," "sexual relationship," whatever -- transformed his misleading answers into literal truth. Too bad, he says, if his questioners were fooled. That is just how the justice system works.

This is nonsense, but it's dangerous nonsense. "Don't try this at home" should flash across the screen during broadcasts of the President's testimony. Each year, tens of thousands of Americans give sworn statements in court and depositions. If they follow Mr. Clinton's example, they're buying trouble. The law of perjury is not so simplistic that it will excuse a misleading answer just because it is literally true.

Ask Robert DeZarn, the former Adjutant General of the Kentucky National Guard. The Army's inspector general was investigating whether contributions to a Kentucky gubernatorial campaign improperly influenced appointments to the Kentucky National Guard. The fund-raising allegedly occurred at a party held at the home of Billy Wellman, a former Guard officer, in 1990. The investigation of the party was big news in Kentucky. But the investigators mistakenly asked Mr. DeZarn whether he had attended a party at Mr. Wellman's home "in 1991," not 1990, and the witness, who was under oath, took advantage of their error.

"Yes," he replied.

"O.K. Sir, was that a political fund-raising activity?"

"Absolutely not."

The Justice Department indicted Mr. DeZarn for perjury and proved he had attended the fund-raiser in 1990. The jury convicted him, and the judge imposed a 15-month prison term after concluding that Mr. DeZarn told new lies about his old lies at the trial. On appeal, Mr. DeZarn argued that because Mr. Wellman also had a party in 1991, which was not a fund-raiser, his answer was literally true and therefore not perjury. He relied on the same 1973 Supreme Court decision that the President's lawyers repeatedly cite.

But in October, the Sixth Circuit Court of Appeals in Cincinnati affirmed the conviction and sentence. In the 1973 case, it ruled, the witness's literally true answer was "nonresponsive." He ignored the question entirely, which should have alerted the questioner.

Mr. DeZarn, by contrast, gave responsive and "categorical answers to questions" in order to mislead.

The court wrote: "A perjury inquiry which focuses only upon the precision of the question and ignores what the defendant knew about the subject matter of the question at the time it was asked, misses the very point of perjury, that is, the defendant's intent to testify falsely and, thereby, mislead his interrogators. Such a limited inquiry would not only undermine the perjury laws, it would undermine the rule of law as a whole."

Mr. DeZarn knew that the investigators were really asking about 1990, not 1991, so his literally true but "contextually false" and misleading answer was perjury.

The lesson of the DeZarn case can be applied to many of Mr. Clinton's sworn answers. For example, at his deposition in January, he was asked if he was ever "alone" with Monica Lewinsky "in any room in the White House." Like Mr. DeZarn, the President well knew the purpose of this question. His "categorical answer" denied any "specific recollection" of having been alone with Ms. Lewinsky. How can that be, especially since one meeting had occurred only three weeks earlier?

Mr. Clinton, it turns out, had his own definition for "alone." As he later explained to the grand jury, other "people could hear" or even "come in and out at will if they were around . . . so there were a lot of times when we were alone, but I never really thought we were." The President had no "specific recollection" of being alone with Ms. Lewinsky because he didn't know who was around at any particular time or what it "really" meant to be "alone."

Mr. Clinton's answers were "contextually false" and intended to mislead, even if we generously assume they were literally true. This is perjury. The United States convicted Mr. DeZarn for the same conduct. By insisting his answers were legal, the President endangers those who think they may copy him. They can't. Making that clear is an indispensable ingredient in any honorable Senate compromise.

Copyright 1998 The New York Times

Stephen Gillers is a professor of legal ethics at New York University.