What Clinton Should Have Known

Now that the midterm election results have slowed down the impetus toward impeachment, it is time to reflect on how President Clinton got himself into the position of testifying about his sex life. Difficult as it may be to believe, the president did not know that he had the option of not having to testify at the Paula Jones deposition.

The president had three options, but he was aware of only two of them. He knew that he could litigate and try to win, as he ended up doing. He also knew that he could try to settle the case, which would have avoided the necessity of testifying at the deposition or trial. A settlement requires both sides to agree. In the Jones case, the president reportedly offered to pay Jones $700,000 to settle the case. Jones insisted on an apology and the settlement talks eventually broke down.

The third option, of which the president was unaware, was to default the Jones case. Every litigant in a civil case has the right to default, which means, essentially, to settle the case unilaterally by simply refusing to contest the allegations in the complaint. No stigma is attached to defaulting a case. It does not even necessarily entail an admission of liability. It represents a practical assessment of the costs and benefits of litigating and not litigating just as a settlement does.

Robert Bennett never told President Clinton that he could have defaulted and paid Jones far less than the $700,000 he offered without making any apology. Nor did he tell the president that he could have used the threat of defaulting to increase the chances of securing a settlement. Bennett could have approached the Jones lawyers and told them that under no circumstances would there be a trial; the only options were default or settlement. A default would have probably resulted in a monetary judgment of less than $100,000; damages in such cases tend to be in the range of $25,000 to $50,000. Moreover, there would be no apology of any kind. To the contrary, the president would assert his absolute innocence and release a statement explaining why he had no choice but to default, since litigation would take too much valuable time from his presidential duties. Settlement, on the other hand, would result in a payment of $700,000.

Faced with these options, it is likely that the Jones lawyers would have accepted a settlement and Clinton would never have had to testify about his sex life in any proceedings. Perhaps the Lewinsky story would have leaked, but the president would not have had to dignify a rumor with a response. It was the entirely avoidable decision to have him testify under oath that turned a sex rumor into a possibly impeachable offense.

How do I know that Bennett never told Clinton of the default option? Because both men personally told me. Here is the story, being told publicly for the first time:

On Jan. 27, 1998, Bennett called me to complain about what I said about him on television. I had been critical of his allowing Clinton to walk into a perjury trap.

I asked Bennett a direct question: “Did you ever advise the president that in addition to the option of settling the Jones case, he could simply default on the liability phase of the case?”

Bennett replied that defaulting would have been “ridiculous” and “a stupid idea” and that he would never recommend it. He also told me that it was the president who did not want to settle the case and that he would never agree to default because other women would “come out of the woodwork.”

I asked Bennett what kind of an investigation he had conducted of the Lewinsky matter before he allowed the president to be deposed, and he acknowledged that he simply accepted the president’s word, since it was supported by Monica Lewinsky’s affidavit. I asked him whether he had ever questioned Lewinsky and got a vague response. He did say that he was surprised about the questions asked concerning Lewinsky at the deposition.

Seven months later, in August 1998, in the presence of a dozen people on Martha’s Vineyard, I asked the president whether Bennett had ever told him that he had the option of defaulting rather than testifying about his sex life. He said: “Nobody ever told me I could default instead of testifying. I thought I had to testify. Nobody told me about defaulting until just now.”

Imagine how different the world would be today if Clinton had defaulted instead of testifying. Monica Lewinsky would be the subject of gossip, not an impeachment inquiry. There would be no sworn testimony about Clinton’s sex life. Starr would be teaching at Pepperdine.