Starr’s Perjury Tack a Road Less Traveled

In pursuing possible perjury charges against President Clinton and Monica S. Lewinsky for allegedly lying under oath about whether they had a sexual relationship, independent counsel Kenneth W. Starr is moving into territory that few prosecutors cross.

Nationally, only 1% of all criminal prosecutions are perjury cases, and only a tiny fraction of those are based on alleged lies in civil cases. In Starr’s investigation, the alleged false statements came in Paula Corbin Jones’ case accusing Clinton of sexual harassment.

Civil perjury is, along with income tax evasion, “the least prosecuted crime in the United States,” says E. Michael McCann, the Milwaukee County district attorney who prosecuted mass murderer Jeffrey Dahmer and is the former chairman of the criminal justice section of the American Bar Assn.

Perjury stemming from civil lawsuits is rarely prosecuted, in part because many prosecutors say they fear being swamped with cases were they to dive into the subject. In addition, perjury is a difficult crime to prove--a further disincentive to prosecutions. There are no comprehensive data on the conviction rates in these cases, experts say.

The rarity of such cases has led to questions in legal circles about whether Starr is acting appropriately.

Many legal experts believe he is not, arguing Starr is pursuing a case that hardly any normal prosecutor would.

Loyola University law professor Karl Manheim said he is deeply concerned about the sweep of the investigation, referring to Starr as “the inquisitor general.”

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But perjury charges stemming from civil cases are filed on occasion. Indeed, Clinton’s own Justice Department appointees have brought such cases in recent years--including at least one that stemmed from a sexual harassment claim.

Moreover, some attorneys and law professors contend that the question of what a “normal” prosecutor would do has only limited relevance to this case. Starr, they note, has a specific mandate from the court that appointed him to broadly examine whether Clinton has committed any number of crimes. That justifies tactics that a prosecutor otherwise might not use, Starr’s defenders argue.

“It’s different when you have a prosecutor with one target and one mission--to see what crimes, if any, this individual has committed,” said Laurie Levenson, associate dean of Loyola Law School and a former federal prosecutor.

In addition, Levenson noted that Starr, unlike virtually all other prosecutors, probably does not have to worry about whether he can build a case that would lead to a conviction--at least insofar as Clinton is involved.

If Starr were to try to bring charges against Lewinsky, who may testify before the federal grand jury this week, he would have to worry about the difficulty of obtaining a guilty verdict in a perjury case.

Starr’s investigators have been looking not only at whether Lewinsky testified falsely but also at a more serious potential charge: whether Clinton, his close friend Vernon E. Jordan Jr. or others may have encouraged false testimony by finding jobs for Lewinsky or offering other inducements. Clinton and Jordan have denied any wrongdoing.

If Starr decides that his investigation has found serious evidence of wrongdoing by Clinton, he is almost certain to turn the case over to the House of Representatives.

In that event, his job would be more akin to that of an investigator, with Congress ultimately responsible for deciding what to do with the evidence he has gathered.

“He’s not making this case for a jury; he’s making this case for the House of Representatives, so almost anything goes,” Levenson said.

Even Philip B. Heymann, former deputy attorney general in the Clinton administration, says he is withholding final judgment on Starr’s conduct, although he expresses concerns about the scope of Starr’s investigation.

“It is very rare for a prosecutor to bring a case of perjury or suborning perjury out of a civil case,” said Heymann, now a professor at Harvard Law School.

“But this is different, a highly publicized national matter.”

The question of whether Starr should have gotten into the Lewinsky matter at all is “a close call,” Heymann said, adding that Starr would have done better if he had suggested Atty. Gen. Janet Reno appoint another independent counsel for this investigation “because he has so much baggage from the Whitewater investigations.”

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Nonetheless, Heymann said Reno and a federal court have given Starr a broad mandate to look into Clinton’s relationship with Lewinsky.

“I think everything he has done is defensible, but it is all on the hardball side,” Heymann said. “I don’t detect any restraint or sense of care for the overall impact.”

A concern for the overall effect on the judicial system is one of the reasons prosecutors seldom bring cases involving civil perjury.

“To commit resources to civil perjury cases would be a bottomless pit,” because lying in civil cases is so common, McCann said.

At the same time, the very commonness of perjury--and the rarity of prosecution for it--is troubling to many judges and legal ethics experts.

“It’s a very frustrating thing for a judge,” said Kenneth A. Rohrs, dean of the National Judicial College in Reno. “If people commit perjury, there is no respect for the system.”

Daniel Petrocelli, lead lawyer for Fred Goldman, who garnered a 1997 civil verdict against O.J. Simpson for the wrongful deaths of Nicole Brown Simpson and Goldman’s son, Ronald, made a similar point.

“It bothers me when people say that perjury is less offensive when it occurs in a civil case, rather than a criminal case,” Petrocelli said.

Petrocelli impeached Simpson’s testimony at several points during the civil trial, in particular Simpson’s statement that he had never hit, struck, slapped or kicked his former wife.

“He should have been prosecuted for perjury,” Petrocelli said Friday.

The issue of such a prosecution was widely discussed in public last year, including at a press conference by attorney Gloria Allred, who called for Simpson to be charged. But Sandi Gibbons, a spokeswoman for the district attorney’s office, said that “no one ever sent us transcripts” of Simpson’s testimony or pushed the issue.

Another restraint on prosecutors, legal experts note, is the difficulty of winning a conviction. In order to make a successful perjury case, a prosecutor has to do much more than demonstrate contradictory statements. The prosecutor has to prove that the defendant intentionally made a false statement or written declaration under oath on a “material” point--meaning something that is relevant to proving what is at issue in the underlying case.

In the Clinton-Lewinsky controversy, legal experts are split on what would be material.

UCLA criminal law professor Peter Arenella said that because the statements at issue--an affidavit by Lewinsky and a deposition by Clinton, both denying a sexual relationship--were taken in the Jones case, the issue is whether a false statement would be material to proving Jones’ charge of sexual harassment.

Since the allegation about Clinton and Lewinsky involves a consensual affair, not harassment, “on its face, such alleged lies . . . do not appear to be material,” Arenella said.

Others, such as Joseph E. diGenova, who served as a U.S. attorney in Washington during the Reagan administration and later as an independent counsel himself, argue that Starr is investigating larger, more serious charges: whether Clinton and others have attempted to obstruct justice in the Whitewater matter and in the Jones case. Therefore the issue of what is material is much broader, he says.

DiGenova recently defended a man charged with perjury after a civil case. His client, a Washington surgeon named Jeffrey Goltz, had made considerable money as an expert witness in personal-injury cases until a federal judge in a civil trial ruled in 1993 that he had “greatly inflated his credentials” during a civil trial.

A criminal investigation ensued, and in 1996 Goltz pleaded guilty to testifying falsely about his degrees, the medical school he attended and the number of states in which he was licensed to practice.

“I argued strenuously to the U.S. attorney’s office against charging him,” DiGenova said. “I made all the arguments the Clinton people are making now--that civil perjury prosecutions would clog the courts, where will it end . . . all to no avail.”

Like the Goltz case, most perjury prosecutions stemming from civil trials are launched with complaints by an aggrieved litigant, although some come about from sting operations.

One of the most noteworthy cases in recent years arose out of a case in which David Wayne Holland, grand dragon of the White Knights of the Ku Klux Klan, attempted to hide his money, his car, boat and business interests in order to avoid paying a $50,000 fine owed to civil rights activists injured when klan members attacked a 1987 demonstration in Forsyth, Ga.

In 1992, a federal jury convicted Holland of perjury because of false statements he had made about his assets. In upholding the conviction, the federal appeals court in Atlanta made it a point to “categorically reject any suggestion, implicit or otherwise, that perjury is somehow less serious when made in a civil proceeding.”

“Regardless of the setting, perjury . . . is a serious offense that results in incalculable harm to the functioning and integrity of the legal system as well as to private individuals.”

A more recent case in Kentucky involved sexual harassment, although with a twist absent in the allegations against Clinton. A Lexington, Ky., woman was convicted of soliciting a $20,000 bribe in exchange for false testimony for a doctor who was a defendant in a sexual harassment case. The woman was sentenced to one year in prison.