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For a 'CITIZEN'S PRIVILEGE'

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12-28-98 William Safire

For a 'Citizen's Privilege'

WASHINGTON -- What can we do to transform the messiness of 1998 into the improvement of our national life in the New Year? How can we make lemonade out of this lemon of a Presidency?

Step One is well under way: After House impeachment and Senate action, no high official will be tempted to lie under oath or obstruct justice again soon.

Step Two has yet to be addressed: At the root of Bill Clinton's undoubted criminality is a bad law.

Needed is change in civil rights and sexual harassment litigation to enable the accused to assert a new "citizen's privilege" -- to refuse to involve third parties in an accuser's attempt to prove a pattern of harassment. If forced to confess as a condition of continuance, Mr. Clinton can claim to be a martyr to his civil disobedience.

Step Three is to practice a long-overdue social jiujitsu. We must use the force of the public's revulsion at the excesses being committed by the exposers of adultery to stop the erosion of personal privacy in public life.

For daring to expose the real crimes committed to cover up moral transgressions, political figures are being "outed" for their adultery -- as if marital infidelity were equivalent to the crime of perjury. It is not. Sin is private and crime is public. To pretend otherwise for political or commercial gain is the height of hypocrisy.

As an avowed libertarian conservative, I come to this assertion with nonpartisan hands. My privacy epiphany came after being wiretapped in the Nixon era. In this space, I deplored the use of divorce testimony to savage John Tower; defended Democratic Senator Gary Hart and Mayor Marion Barry from lip-smacking sex entrappers; assailed the attempted radical-feminist lynching of Clarence Thomas; and denounced the Senate's unprecedented rummaging through Bob Packwood's personal diaries at the insistence of a sanctimonious Nevada "ethicist."

We privateers now face a danger from a combination of sin-seekers on the right and hypocrisy hypocrites on the left.

Today, adulterers are the targets of choice. Tomorrow, the hypocri-moralizers will demand answers from female candidates about ever having had an abortion; from youthful candidates about masturbation; from the unmarried about ever having had homosexual thoughts; and from the purest of the pure about how they can condone their own children's premarital sex. Do we really want to pit truthful eunuchs against normal liars?

One way to help slow this trend is for journalists who do their job of exposing financial and political corruption to look with disdain on those pornalists who march lockstep with the morality cops. And for family media to refuse to recycle uncritically the linen of sex-hungry media.

We need the aid of public figures in this. In the 1980's, a reporter from a responsible newspaper asked Gary Hart the naked question, "Have you ever committed adultery?" The candidate, with a stricken look on his face, said that he thought nobody should be required to answer such a question. In 1992, Clinton found a creative way to slip past the question.

But Hart was right; the "A" question, unless dealing with a crime, ought never to be asked. But since it will be, what should the answer be?

The response I suggested then has merit today: an aggressive, offended "Go to hell!" (Because the word "hell," unless used to mean the domain of the Devil, is stylistically frowned upon at The New York Times and other family-friendly publications, I will amend that to a vigorous "Leap in the lake!" or a genteel "Mind your own business.")

The rationale is this: When an absolutely faithful spouse boasts "I have never strayed," he or she puts pressure on all other candidates to violate their families' privacy or to lie. Such bragging rewards sexual snoopiness, and encourages the pornalists' descent into questions shudderingly described above.

When Dan Quayle volunteered assurance of his never-wavering fidelity on national television recently, he thereby unthinkingly undermined the civil liberty of fellow candidates. Dan -- a good man -- ought to be ashamed of himself, as should any other non-sinner who slyly encourages such intrusive questioning.

Professions of purity pollute our politics. Don't brag; don't lie; just assert your "citizen's privilege" and don't make news with an answer.

NY TIMES 12-28-98 Stephen Gillers

THE PERJURY PRECEDENT NY Times 12-28-98 Stephen Gillers December 28, 1998 The Perjury Precedent By STEPHEN GILLERS

resident 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.

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