Clinton's 'Sins-but-No-Lies' Tactic Perilous


To many Americans--including some who sit in Congress--President Clinton's latest defense in the Monica S. Lewinsky scandal seems out of whack on one key point.

In his public statements, the president now says that he sinned and is repentant over his sexual affair with the young intern. At the same time, however, he and his lawyers continue to insist that he did not lie when he denied under oath having sexual relations with her or even recalling being alone with her.

"He believed he testified truthfully," Clinton's attorney David E. Kendall has said, doing his lawyerly best to make an implausible argument sound reasonable.

Legal experts say the "I-sinned-but-did-not-lie" strategy is a gamble calculated to ward off such potential penalties as impeachment, a later criminal indictment and even a loss of the future ex-president's license to practice law.

"Admitting to a felony could make impeachment easier and it could expose him to sanctions after he left the presidency," said attorney Irvin Nathan, a former Justice Department official under Presidents Carter and Clinton. "I don't blame them for not wanting to admit to a federal law violation," he said.

"He could be prosecuted after leaving office" if he confessed to lying in the Paula Corbin Jones case, said Theodore B. Olson, a Justice Department official in the Ronald Reagan administration. "At the very least, his license to practice law could be revoked," he said.

If Clinton leaves office on schedule on Jan. 20, 2001, the 54-year-old former president with a Yale law degree could command a multimillion-dollar salary from a law firm, money that he would no doubt need to buy a house and pay off his huge legal debts. His post-presidential future would not look so bright if he had a perjury conviction on his record.

Still, his legal tactic is in danger of backfiring in the political arena.

Some members of Congress were grumbling Saturday that, although the president is trying to come clean, his claim to have given misleading but "legally accurate" answers has revived the image of Slick Willie.

"His cavalier attitude with the truth is really something that bothers me. It bothers me as much as, if not more than, the immorality of the acts," said Rep. Tim Roemer (D-Ind.). The president's carefully parsed defense is filled "with legalese talk. And I think that bothers people."

Washington attorney Victoria Toensing, another Reagan administration official, said the White House legal defense "was striking to me because being contrite means you want to confess it."

"I think it shows he's still living in a fantasy world," she said. "But perhaps it shows he's worried he could be prosecuted if he admitted that he committed a felony."

In their rebuttal to the report of independent counsel Kenneth W. Starr, Clinton's lawyers attack the prosecution's case where it is weak-- surprisingly weak.

Despite early leaks suggesting that the prosecutors would show that the president conspired to obstruct justice and silence witnesses, the report's evidence is thin and at times contradictory. For example, Lewinsky said it was she who first raised the issue of returning the president's gifts to her. Clinton does not appear to have organized any sort of cover-up.

And Lewinsky's search for a job began months before she was subpoenaed to testify in the Jones case. She also firmly denies that the president told her to lie.

But if the House votes for an impeachment inquiry, lawmakers will be forced to resolve whether Clinton committed perjury when questioned under oath.

It would not be the first time a simple perjury charge riveted Washington and the nation. Fifty years ago, former State Department official Alger Hiss denied under oath that he knew an ex-Communist named Whittaker Chambers or that he passed secret documents to him.

After two celebrated trials, Hiss was convicted of perjury and imprisoned.

It is not easy to prove that an apparent lie amounts to perjury, and the president's team relies on two main arguments against Starr's perjury charges.

A statement that is "literally true but misleading" is not perjury, they maintain, citing a famous Supreme Court ruling. In addition, lies must be "material" to the outcome of a case to be considered perjury. Since the Jones case did not turn on the president's relationship with Lewinsky, his false statements cannot be considered perjury, they said.

In a famous case, the Supreme Court reversed the perjury conviction of Samuel Bronston, whose company had gone bankrupt.

"Do you have any bank accounts in Swiss banks, Mr. Bronston?" he was asked in a bankruptcy hearing.

"No, sir," he replied.

"Have you ever?" he was asked next.

In fact, Bronston had just closed a personal account in a bank in Geneva, but he replied by saying that the company once had an account in Switzerland. This was true, but it also allowed him to avoid answering whether he ever had a Swiss personal account.

Though Bronston's response was "shrewdly calculated to evade," it was not perjury because he did not actually say that he never had had a personal account in Switzerland.

Since then, Kendall said, the case of United States vs. Bronston has stood for the proposition that the "wily witness" who tries to fool his questioners cannot be charged with perjury, so long as his answers are "literally true."

On Jan. 17, the president was asked under oath: "Have you ever had sexual relations with Monica Lewinsky?" The Jones lawyer referred to an agreed-upon definition of sexual relations to mean "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."

Clinton said no. "I have never had sexual relations with Monica Lewinsky," he replied.

Now, Kendall says the president had "an improper intimate relation of a sexual nature" with Lewinsky, but not "sexual relations."

"It is the president's good faith and reasonable interpretation that oral sex [performed on him] was outside the special definition of sexual relations provided to him," the attorney said.

Starr's report says this claim is far-fetched. Under this definition of "an oral sex encounter, one person is engaged in sexual relations, but the other person is not engaged in sexual relations," it says.

And as for Lewinsky's testimony that Clinton touched her breasts and genitalia, Clinton denied doing so in his Aug. 17 testimony before the grand jury.

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