Perjury is knowingly telling a lie under oath, about something that is important to the case. To prosecute a false statement, the government needs to prove somehow that the witness intended to lie, rather than he was mistaken or confused over the facts. To eliminate ambiguity, confusion and opportunities for lying, lawyers often reject common-sense definitions in favor of legal definitions, which are more carefully defined. A witness who answers a legal definition accurately, in spite of what common sense says, is not committing perjury. The only requirement for a defendant is to answer questions accurately; he is not obligated to help the prosecution bring himself down, and has a constitutional right to fight vigorously in his defense. In Clinton’s case, no accusation of perjury survives these observations.



Argument

Many believe that Clinton committed perjury – that is, he lied under oath – during the Paula Jones deposition (January 17, 1998) and the Grand Jury (August 17, 1998). However, the term "perjury" has been thrown around so loosely that it is important to go over its definition.

Perjury occurs when a person takes an oath to tell the truth and then says something he knows to be false. The mere existence of error in someone’s testimony is not enough to prove perjury. The government must prove that the person intended to lie, rather than he was simply mistaken or confused over the facts. The law requires either another witness or some other evidence that supports the accusation of lying under oath. Furthermore, not all lying under oath is perjury. The lie must be material – that is, important or relevant to the case. A murder suspect who falsely testifies that he ate cereal in jail that morning cannot be prosecuted for perjury over that irrelevant lie. (1)

It is also important to clarifying what "lying" is, as opposed to "evading," "misleading," or "incomplete answers." In the following examples, let's assume the respondent knows the full truth. Here is an example of a lie:

Q. What color is white?
A. It’s the color of apples.

Q. What color is white?
A. I think it’s six o’clock.

Q. What color is white?
A. It’s a reflection of all colors. (Scientifically true, but evoking images of red, blue and yellow in the questioner’s mind does not lead him to the answer he was seeking.)

Q. What color is white?
A. It’s the color of bunnies. (Generally true, but not all bunnies are white.)

The law requires witnesses only to give technically true answers to questions under oath. Indeed, the Supreme Court has ruled that a wily defendent who gives evasive answers is not guilty of perjury. Furthermore, the 5th Amendment guarantees witnesses the right not to incriminate themselves. They are not obligated to volunteer more information than the questioner asks for, or to help the prosecution prove its case against them, or to offer unsolicited clarifications to ambiguous questions. Defendants have a constitutional right to fight vigorously for their defense; their only requirement is to answer the question accurately. It is up to prosecutors to fill in any gaps or dispel any confusion by asking follow-up questions.

In other words, our justice system is based on the adversarial process, in which it is up to prosecutors to prove their case, and defendants to prove theirs (namely, that the prosecution hasn't proven its case). Defendants are not obligated to help prosecutors, and prosecutors are not obligated to help defendants. So if a defendant resorts to evasive, misleading or incomplete answers, that is his right. Prosecutors must overcome any such attempts by asking follow-up questions.

Some might argue, "But the oath says ‘to tell the whole truth.’ An incomplete answer is not the whole truth." True, but no answer is the whole truth. You can describe a hundred things about even the simplest event, like putting down a book. What time of day did you put the book down? What was the book’s title? Where did you lay the book? Was it upside down? Why did you do so? How many pages had you finished? And so on, infinitely. Obviously, you cannot be expected to cram an infinite number of details into one answer. That is what follow-up questions are for.

There are four problems with the charges that Clinton committed perjury.

First, Starr never provided convincing evidence that it was Clinton’s intention to lie, rather than he was mistaken, confused, or honestly believed his interpretation of the court’s definitions.

Second, many of the alleged perjury charges were immaterial (irrelevant) to the case, and cannot be prosecuted.

Third, many of Clinton’s answers were technically true.

Fourth, the Republicans have taken the odd position that where Clinton and Lewinsky’s testimony differ, it must be Clinton who is lying. They conveniently neglect the possibility that Lewinsky might be lying, mistaken, confused, exaggerating the level of her romance, or coerced into her testimony by Starr’s heavy threats of prosecution. We know that Lewinsky entertained highly unrealistic fantasies, like Clinton would leave his wife for her. She also told her friends, family and therapist stories that were either clear lies or fantasies, like she and Clinton had sex in the Oval Office without any clothes on, that the president invited her to accompany him to Martha's Vineyard while the first lady was out of the country, and that the Secret Service took the president to her apartment for a tryst. Her testimony is therefore far from certain.

Another common misperception is over the role of legal definitions. A famous example is the definition of "sexual relations." Many people are outraged that Clinton does not consider oral sex to be sex. Obviously, people have a common-sense definition of sex. As one Clinton critic wrote: "Sex is sex is sex is sex. I know sex when I see it."

But although everyone has a "common-sense" definition of sex, few of these definitions agree. In a survey of 600 college students, 60 percent said they would not have "had sex" if the activity were oral-genital contact. (2) This statistic alone is an argument-stopper.

And the more you think about it, the more ambiguous the term "sex" becomes. There is a vast spectrum between an innocent kiss good-by and sexual intercourse. Where do you draw the line? For men who grew up in the 50s and 60s, a common analogy was the baseball diamond: the challenge was to get to first base, second base, third base, and then a home run. No one considered first base to be sex, but fourth base was clearly sex. And what about the differences between fondling, light petting, heavy petting, and sexual intercourse? Or a light hug, a prolonged hug, a romantic embrace and a passionate embrace? Or a platonic massage, a full-body massage and a sexual massage? If sex involves contact with the erogenous zones, then what about people with erogenous zones in unusual places, like their feet, earlobes or the back of their shoulders? Must clothes be on or off? Is lap-dancing "sex"? Is phone sex "sex"? Can you have sex with someone a thousand miles away, even though that person is arousing you? What about passionate encounters that don’t result in orgasm? What about unintentional encounters that do?

The ambiguity of common-sense definitions is what causes lawyers to agree to legal definitions. Legal definitions clearly state what a behavior is and is not. Far from obfuscating and confusing the issue, legal definitions are like dictionaries that clarify meaning and draw lines between concepts. They allow a person to know exactly what he’s talking about. And they not only protect defendants from accidental perjury charges, but allow prosecutors to see perjury more clearly and prosecute it more successfully.

The trick, of course, is to craft good legal definitions. The lawyers for Paula Jones badly bungled their definition of sexual relations, coming up with one that did not include oral sex performed on Clinton. (More on this below.) Clinton answered absolutely truthfully; according to that legal definition of "sexual relations," he did not have sex with Ms. Lewinsky.

Many critics have exploded with rage over this, accusing the president of perjury. Oral sex is obviously sex, they claim. However, their argument is based on the common-sense definition of sex, which both teams of lawyers explicitly rejected. They agreed to a legal definition instead. One cannot simultaneously reject a common-sense definition of sex and then use it to disparage Clinton’s answer.

Other critics point to the illogical implications of Clinton’s answer, namely, that Ms. Lewinsky would have been having sex with him, but not he with her. This would indeed be impossible in the real world of common sense, but it would not be impossible in the theoretical world of legal definitions. (Although such a paradox implies the definition was badly crafted.) Again, it is unfair to judge Clinton’s answers by any other standard than the one he agreed to, and that standard was a legal definition.

Examination of specific perjury claims

The links below examine specific claims of Clinton's perjury. Before delving into these accusations, a quick background is necessary. Clinton is accused of perjury on two occasions:

1. The Paula Jones deposition on January 17, 1998.
2. Starr's Grand Jury hearing on August 17, 1998.

Here is the background to these two events:

In 1994, Paula Jones filed a lawsuit against Bill Clinton, claiming that he had sexually harassed her three years earlier. The Paula Jones case led to a deposition in January 1998, in which the Jones lawyers questioned witnesses about possible sexual activity and sexual harassment involving Bill Clinton. Clinton himself testified before the deposition on January 17, 1998. During this deposition, he denied having "sexual relations" with Monica Lewinsky, as the court defined the term. His answers convinced his enemies that he had committed perjury. Because Vernon Jordan was involved in both the Whitewater scandal and a job search for Ms. Lewinsky, Ken Starr expanded his Whitewater investigation into the Monica Lewinsky affair. On April 1, 1998, Judge Susan Webber Wright threw out the Jones case, arguing that even if the charges were true, they did not constitute sexual harassment. However, Ken Starr held a Grand Jury hearing on August 17, 1998, in which Bill Clinton was questioned about alleged perjury in his deposition testimony. Clinton's enemies thought his answers in this second round of testimony produced new examples of perjury, and both his testimonies were presented in the Starr Report as grounds for impeachment.

Here, then, are the specific claims of perjury:

1. Perjury about "sexual relations" in the Paula Jones deposition.
2. Perjury about when the affair began.
3. Perjury about exchanging gifts with Monica Lewinsky.
4. Perjury about Monica Lewinsky's affidavit.
5. Perjury about being alone with Monica Lewinsky.




Return to Overview

Endnotes:

1. Glossary, ‘lectric Law Library(tm). Website: http://www.lectlaw.com.

2. Poll conducted by Kinsey Institute for Research in Sex, Gender and Reproduction, "Would You Say You 'Had Sex' If..." (Indiana Unversity, 1991). Poll cited in American Medical Journal, January 20, 1999.