Allegations Could Lead
to Impeachment, Prosecution
Washington Post Staff Writer
Thursday, January 22, 1998; Page A12
The allegations facing President Clinton that he lied under oath about having a sexual relationship with a White House aide and told her to deny it represent serious possible criminal violations that, if supported, could lead to his removal from office and prosecution, legal experts said yesterday.
But the experts also cautioned that such allegations, especially the suggestion that Clinton instructed the woman to lie, may be particularly difficult to prove because they could come down to a swearing contest about events and conversations that no one else witnessed.
While the facts concerning any possible relationship between Clinton and former White House aide Monica Lewinsky are uncertain and likely to remain so for some time, the law is fairly clear:
Lying under oath, even in a deposition in a civil case, constitutes perjury, a federal crime. Clinton could theoretically be charged with perjury if, as alleged, he had an affair with Lewinsky and then denied it when questioned Saturday in the Paula Jones sexual harassment lawsuit.
Counseling a witness to lie under oath or withhold evidence could constitute subornation of perjury encouraging a witness to lie under oath obstruction of justice and conspiracy to commit those crimes. According to sources, a former White House aide has reported that Lewinsky said Clinton and adviser Vernon E. Jordan Jr. told Lewinsky to deny any relationship with the president.
"It is the potential end of a presidency, if true," said George Washington University law professor Stephen Saltzburg, a former Justice Department official and Iran-contra prosecutor.
While independent counsel Kenneth W. Starr's original mandate began with the Whitewater investigation, the scope of his inquiry has mushroomed far beyond that, most recently with court approval last Friday for Starr to examine Clinton's dealings with Lewinsky. Starr may have gathered evidence on the matter before the court officials granted him expanded authority, but legal experts said that would have no bearing on his ability to use the material in court.
Still, it is not certain that Starr could ever indict and prosecute Clinton, even if he built a case against him. The question of whether a sitting president can be subject to criminal prosecution is "one of the great open questions of American constitutional law," said Akhil Amar, a professor at Yale Law School.
The Justice Department has said, and Amar and many other legal scholars agree, that because of the president's unique role as head of the executive branch, the only proceeding that can be brought against a president while in office is impeachment.
The Constitution provides that "the president . . . shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." The House of Representatives has authority to bring articles of impeachment; the Senate tries impeachment cases and requires a two-thirds majority vote for conviction.
The Constitution does not specify what constitutes high crimes and misdemeanors, leaving it to the elected officials to determine what offenses rise to that level. But legal experts agreed yesterday that the allegations against Clinton, if proven, could easily qualify.
"Perjury, subornation of perjury, obstruction of justice are the most corrupting influences on the judicial process, and I would think they would amount to high crimes and misdemeanors more quickly than most things," Saltzburg said.
After removal from office, the Constitution states that the president or other impeached official remains "liable and subject to indictment, trial, judgment and punishment," unless as in the case of Richard M. Nixon he receives a pardon.
But that is a long way from where things now stand. Both the president and Lewinsky have denied under oath that they had a sexual relationship Clinton in his deposition and Lewinsky in a sealed affidavit.
However, with another former White House employee, Linda R. Tripp, alleging that Lewinsky told her about having an affair with Clinton, Lewinsky faces possible legal exposure, in the form of perjury charges, for her affidavit in the Jones case.
That and, in particular, taped conversations in which Lewinsky supposedly detailed to Tripp her relationship with the president gives Starr leverage to put pressure on Lewinsky to cooperate with his investigation by granting her immunity from prosecution.
While the federal perjury statute applies to private lawsuits, prosecutors rarely bring such cases to court, generally leaving it to litigants and judges to sort out who is lying and take appropriate action.
"If I'm the prosecutor that case is brought to, I would decline the case because it seems to me that you ought not to be indicting the president of the United States for things that you don't indict Joe Six-Pack for," said criminal defense lawyer Robert Luskin.
But St. John's University law school professor John Q. Barrett said, "It's an ugly kind of case to think about, but perjury's a very serious crime and perjury by high officials is a particularly serious form of perjury."
Aside from perjury, which carries a maximum penalty of five years in prison, Clinton and Jordan also could face even more serious charges of obstructing justice by tampering with a witness. The federal statute provides a penalty of up to 10 years in prison for someone who "corruptly persuades" another person to withhold testimony.
Even if true, however, that might be a tough allegation to prove because such conversations might have been ambiguous or were private talks that can't be corroborated unless prosecutors could successfully squeeze Jordan as well as Lewinsky to cooperate.
In an interview yesterday with PBS, Clinton strongly denied any such improper action, but did not respond to questions about whether he spoke with Lewinsky. Luskin said that is exactly why defense lawyers instruct clients not to talk to potential witnesses. "You never know what someone will say about such conversations," Luskin said. "You want to eliminate the possibility of an occasion in which your client can be accused of saying these kinds of things."
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