Prosecutors Say Perjury Case Has Little Merit
Washington Post Staff Writer
Thursday, December 10, 1998; Page A38
If William Jefferson Clinton were just an ordinary citizen, it is unlikely he would ever face federal perjury charges for giving false testimony about his sexual involvement with Monica S. Lewinsky, a panel of prominent former federal prosecutors told House Judiciary Committee Members yesterday.
"I think that it's fairly clear, and that if a poll were taken of former U.S. attorneys from any administration, you would probably find the overwhelming number of them would agree with the assessment that this case is a loser and just would not be sustained in court," said Edward S.‚G. Dennis Jr., a 15-year veteran of the Justice Department who once headed its criminal division.
Two of the four articles of impeachment drafted by Republicans on the Judiciary Committee involve allegations of perjury. One alleges that Clinton lied about his relationship with Lewinsky in a deposition given in the Paula Jones sexual harassment suit Jan. 17. The other article cites Clinton's testimony Aug. 17 before independent counsel Kenneth W. Starr's grand jury.
Legal experts questioned about yesterday's testimony generally agreed with the panel of five former prosecutors that the allegations are so weak they would not be brought to trial in the case of an ordinary citizen, both because the allegations rely on the testimony of a single witness, Lewinsky, to contradict Clinton and because the false statements arose as a minor issue in a civil lawsuit.
"Federal prosecutors have broad discretion over whether to bring perjury charges; that's true and it always has been true," Peter Arenella, a law professor at the University of California at Los Angeles, said of the testimony. And most prosecutors simply decide to ignore alleged perjury in civil cases. "It is not a matter of sending a message that such behavior is appropriate or not, it is just a question of how to use scarce law enforcement resources."
But in comments and questions, committee Republicans rejected that line of argument.
"We have gone from the technical to the absurd," said Rep. Robert L. Barr (R-Ga.), accusing the panel of trying to find legalistic loopholes to excuse Clinton's behavior.
Given the extent of testimony corroborating Lewinsky's account of events, Rep. Bill McCollum (R-Fla.) said, "in any court in this land, the jury would be hard-pressed not to convict under those circumstances."
Democrats and members of the panel that testified yesterday argue that if there is no basis for a criminal prosecution, there is no basis to impeach.
"A threshold question is whether, if the president is not above the law, as he should not be, is he to be treated as below the law?" said Thomas P. Sullivan, a prominent Chicago lawyer and former U.S. attorney. "Is he to be singled out for prosecution because of his office in a case in which, were he a private citizen, no prosecution would result?"
Several Republicans on the Judiciary Committee argued that the president should indeed face a higher standard, particularly if what he did was give false testimony.
"We cannot treat it as just another case, but whether or not the president attacks the system of government that is so important to us," said Rep. George W. Gekas (R-Pa.).
Although no explicit rules dictate when perjury should be charged, the panel noted a number of principles that generally guide prosecutors in making such decisions. For example, perjury is rarely prosecuted on its own. More often, that charge is made in connection with other, more serious, felonies, said William F. Weld, former Republican governor of Massachusetts and head of the Justice Department's criminal division during the Reagan administration.
"There's usually something else involved in a federal perjury prosecution," Weld said. "There's a pass-through aspect here; you're really going to something else." Sometimes, he noted, a perjury charge can be used "to rattle the cage a little bit" or "to penetrate a wall of silence."
Practical considerations also come into play. "Neither federal prosecutors nor federal investigators consider it a priority to investigate allegations of perjury in connection with lawful, extramarital, consensual, private sexual conduct of citizens," Ronald Noble, a law professor at New York University and former undersecretary of the Treasury for enforcement, told the committee.
"The answer to every wrongful act is not the invocation of punitive legal processes," testified Richard J. Davis, a former Watergate prosecutor, explaining that the Justice Department sets broad guidelines and then allows federal prosecutors to decide which cases to pursue.
Such prosecutions against ordinary citizens may be unlikely, but Douglas W. Kmiec, a visiting professor of law at Pepperdine University, said the analysis offered in yesterday's testimony ignores the fact that Clinton is not ordinary.
The usual guidelines that determine whether a case is worth prosecuting do not necessarily apply in a case that arises from an independent counsel investigation, Kmiec said. "The law establishes a special category of people – the president and other top officials – who are subject to a special kind of inquiry, one that is more easily triggered, and that is, by definition, an unusual proceeding."
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