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Clinton and Lewinsky
Online Extra
Legal Guide:
Untangling the Issues

By Ruth Marcus
Washington Post Staff Writer
Updated July 28, 1998

The allegations involving President Clinton and former White House intern Monica Lewinsky present enough intriguing legal questions to fill a law school exam. There are issues of criminal law, civil litigation and constitutional interpretation. Here are answers to some of the most frequently asked questions.

_ Is the independent counsel law constitutional?
_ How did Starr expand the Whitewater investigation this far?
_ What are the possible charges?
_ How far does Monica Lewinsky's immunity protection extend?
_ Can a sitting president be criminally prosecuted?
_ How would impeachment work?
_ Could executive privilege limit testimony?


Is the independent counsel law constitutional?

The authority under which Independent Counsel Kenneth W. Starr is operating derives from the Independent Counsel statute, 28 U.S.C. Chapter 40.

The Supreme Court upheld the constitutionality of the law in a 1988 case, Morrison v. Olson. The challenge, championed mostly by conservatives, argued that the law violates the constitutional separation of powers by infringing too much on the president's executive authority.

A seven-justice majority found that even though the counsel is to some degree independent, the law gives the executive branch sufficient control to ensure that the president is able to perform his constitutionally assigned duties.

But Justice Antonin Scalia's dissenting opinion may be worth rereading in light of the chorus of complaints about the conduct of Starr's investigation, which has consumed 3½ years and more than $26 million. Scalia described at length the dangers that could be posed by a roving prosecutor effectively answerable to no one and focused on a particular person – in the Morrison case, a high-ranking Justice Department official in the Reagan administration named Theodore B. Olson:

"Unless it can honestly be said that there are 'no reasonable grounds to believe' that further investigation is warranted, further investigation must ensue; and the conduct of the investigation, and determination of whether to prosecute, will be given to a person neither selected by nor subject to the control of the President ... The prospect is frightening…"


How did Starr expand the Whitewater investigation this far?

The law requires the attorney general to seek appointment of an independent counsel whenever there are "reasonable grounds to believe" that further investigation is warranted into whether a "covered person" – in this case President Clinton – has violated the law.

Starr's original grant of authority concerned allegations that Clinton had broken the law in connection with his Whitewater real estate investment while he was governor of Arkansas.

Since then, Starr's jurisdiction has mushroomed – in part at his own behest and in part at the instigation of Attorney General Janet Reno – to include a host of matters only tangentially connected to Whitewater, but involving many of the same administration players.

(For more background, a time line and key stories on Starr's investigation, see the Whitewater Special Report.)

While Starr has been heavily criticized for this seemingly ever-expanding mandate, the independent counsel law empowers the counsel to look into "all matters related to" his investigation. And the law provides that in deciding whether the independent counsel's scope should be expanded the attorney general "shall give great weight to any recommendations of the independent counsel."

In the current situation, Starr requested and received expansion of his jurisdiction that will allow him to look into:

  • Whether Clinton committed perjury by lying about his affair with Lewinsky when being deposed under oath by lawyers for Paula Corbin Jones in her separate sexual harassment lawsuit, and

  • Whether Clinton suborned perjury and obstructed justice by urging Lewinsky to deny any relationship in an affidavit she submitted to Jones's attorneys.
  • The basis for his request was two-fold. First, Starr was already investigating a parallel allegation, that Washington lawyer Vernon E. Jordan Jr., one of Clinton's closest friends, helped buy the silence of former associate attorney general Webster Hubbell, another close friend of Clinton's and one of Hillary Rodham Clinton's former law partners. Jordan reportedly helped arrange lucrative consulting contracts for Hubbell, an early target of the Whitewater investigation, after Hubbell resigned his government job and before he spent 18 months in jail for bilking clients of the Rose Law Firm in Little Rock. (See How Starr Got Permission to Expand His Investigation, Jan. 30.)

    Lewinsky reportedly alleges in conversations secretly recorded by Linda R. Tripp that after she was contacted by Jones's attorneys, Clinton referred her to Jordan and Jordan urged her to keep silent. Jordan, in a press statement, denied the accusation and said Lewinsky had told him she had no sexual relationship with Clinton. He did, however, acknowledge helping her find a lawyer and setting her up with job interviews.

    Second, the allegations that the president may have suborned perjury and obstructed justice were viewed as serious enough that some outside investigation would be called for and there was an "efficiency" argument for putting that under Starr's jurisdiction, rather than naming another independent counsel. That was particularly true because of the constraints the independent counsel law puts on how much the Justice Department can do in its preliminary investigation of whether an outside prosecutor is warranted. The statute provides that Justice has "no authority to convene grand juries, plea bargain, grant immunity, or issue subpoenas."

       

    What are the possible charges?

    Three major statutes are at issue: perjury, subornation of perjury, and obstruction of justice. (See Allegations Could Lead to Impeachment, Prosecution, Jan. 22.)

    The perjury statute provides that "whoever having taken an oath … in any case in which a law of the United States authorizes an oath to be administered" and "willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true … is guilty of perjury…." (18 U.S.C. 1621)

    Likewise, the subornation of perjury statute provides: "Whoever procures another to commit any perjury is guilty of subornation of perjury ... ." (18 U.S.C. 1622)

    It is extraordinarily rare for the perjury statute to be applied in cases of civil litigation – where, lawyers say, lying is considered rampant. Prosecutors generally leave the parties to work out their own disputes or, in cases of egregious falsehood, rely on judges to impose sanctions such as fines. But the statutes clearly apply to depositions (like Clinton's) or affidavits (like Lewinsky's), which even in civil cases are taken under oath. (See Prosecuting Civil Perjury Is Unusual, but It Can Mean Prison, March 3.)

    While some attorneys say Starr would be reaching in any attempt to criminally punish perjury in such a situation, others say that if it is the president of the United States's conduct at issue, special treatment is warranted.

    Clinton, Lewinsky, Jordan and possibly others also face potential jeopardy under the federal obstruction of justice statute – specifically, the provision for witness tampering (18 U.S.C. 1512).

    A number of alleged activities in the Lewinsky matter could constitute such obstruction of justice. Lewinsky allegedly gave her friend Tripp "talking points" instructing her on what to say in an affidavit about both Lewinsky herself and another former White House aide, Kathleen Willey, who alleged that she was sexually propositioned by the president. Knowingly asking Tripp to provide a false affidavit could expose Lewinsky and anyone else who prepared or helped her prepare the talking points to charges of obstruction and conspiracy to obstruct justice. (See the full text of the "talking points.")

    Similarly, sources who have listened to portions of the tapes made by Tripp say Lewinsky is heard discussing how Tripp could delay her deposition – including a possible plan, supposedly discussed with and approved by Lewinsky's mother, for a phony "foot accident" to avoid testifying. And Lewinsky also may have offered Tripp part ownership of a condominium in Australia in return for her withholding testimony.

    Perhaps the most dangerous allegation confronting Clinton – but also the most difficult to prove – is the suggestion that he and Jordan encouraged Lewinsky to lie about her relationship with the president. In this situation the precise words of what was said matter greatly and – in the absence of a recording – would come down to a murky "he said, she said" situation even if Lewinsky were to insist that either Clinton, Jordan or both flat-out told her to lie. Sources say that on one tape, Lewinsky says Jordan told her that perjury in a civil case is rarely prosecuted. As a factual statement, whatever its intent, that would by itself be insufficient grounds for obstruction charges, some lawyers believe. But other activities – for example, Jordan's extensive efforts to find Lewinsky a job during the same time period that she was preparing her affidavit – could buttress such a charge by helping prosecutors suggest that her silence was, in effect, being bought.

    One wrinkle in applying the perjury statute to Clinton or Lewinsky arose when the federal judge hearing the Paula Jones lawsuit ruled on January 29 that all evidence relating to Lewinsky should be excluded from the Paula Jones case. U.S. District Judge Susan Webber Wright said that information relating to Lewinsky, while it "might be relevant," was not "essential" to the Jones lawsuit and that the need for the Lewinsky evidence was overridden by the potential interference with Starr's criminal investigation.

    That means that any perjury, if it occurred, would have happened in the process of giving evidence that will never actually be presented in the case. (See Jones Case Ruling Complicates Independent Counsel's Task, Jan. 31.) That provides an opening for Lewinsky and Clinton's lawyers to contend that, even if their clients' testimony was untrue, it did not constitute perjury because of the requirement in the statute that the false statement be "material." The legal definition of "materiality" is that it "must have a natural tendency to influence, or to be capable of influencing, the decision" of the person to whom it was addressed. Lower courts are in disagreement over whether a false statement is material if it did not substantially affect the proceeding in which it was made. And the Supreme Court recently ruled that materiality is a question to be decided by a jury, rather than a judge, meaning that resolution of that matter could come far down the line.

       



    How far does Monica Lewinsky's immunity protection extend?

    Lewinsky is now entirely off the hook – unless she perjures herself in her grand jury testimony.

    It took more than six months – starting on January 16, the night Lewinsky was confronted by FBI agents – for Starr and Lewinsky's lawyers to strike a deal on immunity from prosecution.

    The Fifth Amendment provides the right not to incriminate oneself. In this case, because Lewinsky was in criminal jeopardy on a number of fronts, she had the right to invoke her Fifth Amendment privilege and refuse to testify before Starr's grand jury if summoned.

    Prosecutors can overcome potential witnesses' constitutional privileges and force them to testify by granting immunity from prosecution. The talks between Starr and Lewinsky's lawyers, however, hung up over what kind of immunity Lewinsky would get.

    Starr wanted to give Lewinsky immunity from having anything she says, or any information derived from it, used against her. But that form of immunity – called use immunity – didn't go far enough for Lewinsky's lawyers. Under use immunity, the person who is immunized can't be prosecuted on the basis of her testimony or any evidence that grows out of that testimony. But she could still be prosecuted for other crimes if the evidence comes from wholly separate sources. (Starr forced Lewinsky's mother to testify under a grant of use immunity in February.)

    For example, in Lewinsky's case, if she had testified under a grant of "use immunity" that the affidavit she submitted in the Jones lawsuit was false, she could not have been prosecuted for perjury on the basis of that admission. But she could still have been exposed to possible obstruction prosecution for her reported dealings with Tripp.

    Therefore, Lewinsky's lawyers wanted full immunity, also known as "transactional immunity" – so that Starr would not be able to prosecute Lewinsky for anything growing out of the entire episode (short of later perjury before the grand jury).

    Starr's office originally offered such a deal to Lewinsky, but it was withdrawn after one of her lawyers, William H. Ginsburg, refused to allow prosecutors to interview Lewinsky and assess her truthfulness before they signed off on the deal. Ginsburg insisted that the deal was binding – a claim that Chief U.S. District Judge Norma Holloway Johnson rejected in May.

    Lewinsky, outfitted with a pair of new lawyers, submitted to five hours of questions by Starr's prosecutors on July 27. And on July 28 her lawyers announced that she – and her mother – had struck a deal with Starr for full, "transactional" immunity.

    (See Judge Says Lewinsky Has No Immunity Deal, April 30, and Some in the Law Uneasy With Starr's Tactics, Feb. 13.)


    Can a sitting president be criminally prosecuted?

    This is one of the great unresolved questions of constitutional law, and it isn't likely to be resolved anytime soon.

    The Constitution provides that the president "shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and midemeanors."

    The Justice Department and many legal scholars have concluded that because the Constitution provides the remedy of impeachment, and because the president has a unique role at the head of the executive branch, impeachment is the only criminal proceeding that can be brought against the president while in office. (See Allegations Could Lead to Impeachment, Prosecution, Jan. 22.)

    Rather than put that argument to the test and try to prosecute the president, Starr is likely to follow steps outlined in the independent counsel statute (28 U.S.C. 595 (c)), which provides that the counsel "shall advise the House of Representatives of any substantial and credible information which such independent counsel receives ... that may constitute grounds for an impeachment." (See Starr Report Underway, April 8, House Members Would Examine Starr's Evidence, March 19, and Impeachment Provision in Counsel Law Could Become Crucial, Jan. 26.)


    How would impeachment work?

    Under the rules set out in the Constitution, the House can pass an impeachment resolution, with accompanying articles of impeachment, by a majority vote. The Senate then holds a trial presided over by the chief justice of the United States. A two-thirds majority for conviction on any article of impeachment results in removal from office.

    The Constitution does not define the term "high crimes and misdemeanors." Legal scholars say that not all crimes rise to the level of impeachable offenses but that, conversely, conduct does not have to be criminal to constitute an impeachable offense. The term, which comes from English common law, generally refers to offenses of abuse of power and corruption.

    Then-Rep. Gerald R. Ford had the best line in 1970, during the impeachment investigation of Supreme Court Justice William O. Douglas, saying "an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history." (See House's Challenge: Define 'Impeachable' Sept. 8)


    Could Clinton or his top advisors succesfully assert executive privilege to limit their testimony?

    No. The White House invoked executive privilege in an effort to keep aides from testifying fully in Starr's investigation, but Chief U.S. District Judge Norma Holloway Johnson concluded in May that Starr's need to collect evidence outweighs President Clinton's interest in preserving the confidentiality of White House discussions.

    Johnson also denied White House claims to attorney-client privilege and a "protective function" privilege that would allow Secret Service agents to refuse to testify. The White House is appealing those decisions.

    But the president's lawyers abandoned the executive privilege claim. Legal experts said they would have faced an uphill struggle – and there was the also spectre of Watergate to consider.

    In a 1974 ruling (United States v. Nixon), the Supreme Court specifically acknowledged the existence of an executive privilege. It held that the Constitution – though it does not explicitly say so – provides protection for private communications between the president and his advisers.

    But the court nevertheless rejected Nixon's claim of an absolute privilege that completely shielded disclosure of internal communications – namely, the Watergate tapes.

    "Absent a claim of need to protect military, diplomatic, or sensitive national security secrets," Chief Justice Warren E. Burger wrote for a unanimous court, the president's "generalized interest in confidentiality" is outweighed by "the demonstrated, specific need for evidence" in a criminal proceeding.

    In a 1997 case (see full text) the Clinton administration claimed executive privilege to avoid having to turn over to an independent counsel information gathered in the administration's own investigation of former agriculture secretary Mike Espy.

    In an opinion by Judge Patricia M. Wald, the court said the presidential communications privilege first outlined in the Nixon case extends not only to communications directly with the president himself but also to information gathered by senior White House advisers as they formulate recommendations for the president.

    But the court said the privilege "only applies to communications that these advisers and their staff author or solicit . . . in the course of performing their function of advising the president on official government matters."

    (See President Is Denied Executive Privilege and Constitutional Clash Evokes Watergate Era, both May 6, Executive Privilege Invoked for Two Aides, March 21, and Executive Privilege: An Old, Uphill Struggle, Feb. 20).

    Legal links are courtesy of Cornell University Law School, Georgetown University Law School and FindLaw Internet Legal Resources. Submit additional questions to politics@washingtonpost.com.

    © Copyright 1998 The Washington Post Company

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