By Peter Baker and Ruth Marcus
Some of the president's strategists have concluded that the definition of "sexual relations" used by Jones's attorneys during his Jan. 17 deposition included a narrow but important escape hatch. Under this interpretation, advisers said, Clinton could maintain he did not understand the term to include receiving oral sex when he denied having engaged in sexual relations with Lewinsky.
White House advisers yesterday said Clinton had not yet decided whether to adopt such an approach when he submits to questioning by independent counsel Kenneth W. Starr and his deputies on Monday. Some of his advisers are privately advocating such a strategy as the best of bad options, acting on the assumption that Clinton has not been fully truthful about the nature of his relationship with Lewinsky. Taking this route, they reason, could keep him from committing perjury before in grand jury testimony without admitting perjury in the Jones case.
"The legal view is that the Jones attorneys never nailed down either the definition or the answer [in a way] to imperil the president," said one adviser.
But this would not reconcile his testimony with that of Lewinsky, who reportedly told a grand jury last week that she had an 18-month affair with Clinton. Among other things, sources said, she has reported that Clinton fondled her in ways that would be covered under any reading of the Jones definition.
"Frankly, it boggles the mind that when presented with the definition, the president would sit there and look at it and say that covers one half of the conduct, not the other, so I'm okay answering the question in that manner," said Debra S. Katz, a lawyer who represents plaintiffs in sexual harassment cases. "She was in the White House performing sex acts on him and that doesn't constitute sexual relations? I think that's a real hard sell. . . . There does seem to be an intent to deceive with that answer."
"Talk about splitting hairs," agreed Lawrence Lorber, who represents defendants in sexual harassment lawsuits. The argument "that you're not engaged in sexual relations if you're allowing that contact to be done to you rather than you doing it to the other person is creative, but my own sense of it is that it's simply not going to hold."
With a judge's permission, the Jones attorneys adopted a definition inspired by the federal sexual assault statute. Under this definition, shown to Clinton as he was asked about Lewinsky, "a person engages in 'sexual relations' when the person knowingly engages in or causes contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of any person." Contact, it added, would mean "intentional touching" even through clothing.
The crux of the argument from the Clinton camp is that the Jones definition would not apply if he received oral sex. Under this theory, the term "any person" would mean any person other than Clinton.
To constitute perjury under federal law, a statement must be made with the knowledge that it is false and must be material to the case at hand. Statements that are technically true, no matter how misleading they may be, are not considered perjury; likewise, a false statement cannot be punished as perjury unless the untruthfulness was deliberate.
While acknowledging that their strategy would appear legalistic and "slick" to the general public, Clinton advisers said it was crucial he not admit to a crime. Looking at the deposition through a technical lens, these advisers maintained the president was required only to give a correct answer in a literal sense and had no obligation to clarify for Jones's lawyers if they used an imprecise definition. Moreover, they pointed out that the Lewinsky evidence was excluded by a federal judge who ruled that it was not central to the Jones case and the lawsuit itself was later thrown out altogether. Therefore, they said, any misstatement would not be material as defined by perjury law.
Jones's lawyers yesterday dismissed the Clinton argument as an "amusing and absurd" theory that would never fly in a courtroom.
"There's little doubt in most people's minds that oral sex is sex in any sense. What else could it be?" said John W. Whitehead, president of the Rutherford Institute, which funds Jones's case. "Jurors by and large are very practical, common-sense-minded people and they rarely are impressed with a convoluted, highly technical legal argument," added Donovan Campbell Jr., her chief counsel.
While polls have shown that most Americans do not care if Clinton engaged in sex with Lewinsky, a new survey suggested they would not agree with an attempt to narrowly define it. Of those interviewed by Time magazine and CNN, 87 percent said that if Clinton and Lewinsky engaged in oral sex it should be considered sexual relations, while only 7 percent disagreed.
Independent experts noted that, during the deposition, Clinton made numerous other statements about his dealings with Lewinsky, including denying that they had an extramarital affair and asserting that he did not recall being alone with her.
Clinton also said he did not remember discussing the Jones subpoena with Lewinsky, although he held out the possibility that they may have joked about her being called as a witness in the case. And he said he thought the last time he saw Lewinsky was when she came to the White House "probably before Christmas" to see secretary Betty Currie "and I stuck my head out, said hello to her." Lewinsky has told investigators about a Dec. 28 meeting where they discussed the Jones case.
Columbia University law professor Gerard Lynch, a criminal law expert, said that even if Clinton could argue that his answer to the sexual relations question was literally true under the Jones definition, he could face other legal problems.
"It's certainly not perjury if they completely omitted from their definition some sex act which happens to be the one sex act that he and she had engaged in," he said. "It's rock-solid that however misleading he may have been -- however devious [or] dishonest he may have been -- it certainly isn't perjury."
But he said, Clinton's testimony on other subjects could provide the building blocks for a perjury case. While in a normal situation a witness might avoid a perjury charge if he said he did not recall something, Lynch noted, it would be difficult for Clinton to argue both that he did not understand oral sex to be within the definition of sexual relations and that he did not remember being alone with Lewinsky.
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