A Dissenter Sits on the Bench

House prosecutors apparently have convinced Senate Republicans that they have a good case of obstruction of justice against President Clinton.

It is not clear, however, that they could convince the judge who is presiding over the Senate impeachment trial, Chief Justice William H. Rehnquist.

Four years ago, he led the Supreme Court in overturning obstruction of justice charges against a California judge who had lied to two FBI agents and denied that he had revealed a secret wiretap.

U.S. District Judge Robert Aguilar of San Jose had been charged and convicted under the same broadly worded federal law cited in the impeachment case that makes it a crime to “corruptly endeavor to obstruct . . . the due administration of justice.”

But rather than ratify a broad, literal reading of the anti-obstruction statute, Rehnquist’s opinion for the court in Aguilar’s appeal limits its reach. It also raises questions about the entire theory of the case against Clinton.

“We do not think uttering false statements to an investigating agent who might or might not testify before a grand jury is sufficient to make out a violation” of the law, the chief justice wrote.

Prosecutors must do more than prove a defendant tried to thwart the justice system in some way or took some action that might obstruct a court in the future, he said. They must prove that the defendant’s action had “the natural and probable effect of interfering” with a grand jury, he said.

By contrast, the House prosecutors are relying on the broad theory of the law that was rejected in the Aguilar ruling. They maintain that Clinton committed a crime when he gave a false account of his relationship with former intern Monica S. Lewinsky to Betty Currie, his secretary, and White House aide Sidney Blumenthal, because they might be called to testify in the future.

Dispute Over Who Is ‘Potential Witness’

Article II in the impeachment case says Clinton “obstructed the administration of justice” when he “related a false and misleading account of events . . . to a potential witness,” meaning Currie and White House staff members.

But this “potential witness” theory was specifically rejected by the high court.

It is too “speculative” to charge someone with a serious crime based on the possibility their false statements may later infect a court proceeding, Rehnquist wrote. By this view, “any act, done with the intent to ‘obstruct . . . the due administration of justice’ is sufficient to impose criminal liability,” he continued. His opinion was joined by Justices John Paul Stevens, Sandra Day O’Connor, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

The contrast between the two views highlights again that the Senate proceeding is not a legal trial but a political one. Rehnquist might privately squirm at the tortured references to the law, but he is not in a position to correct them. The senators listening to the debate might not absorb the finer points of the Supreme Court’s rulings and, in any event, they are not bound to abide by them.

Still, the latest interpretation of the law on obstruction of justice makes for interesting reading as the Senate draws closer to deliberation of the Clinton case.

Divergent Views on Obstruction

According to the Supreme Court, it is not obstruction of justice for a judge to lie to FBI agents about an illegal act, the disclosure of a secret wire tap. According to the prosecutors, it is obstruction of justice for the president to lie to his secretary and his aides about a secret sexual affair.

During their presentations to the Senate, the prosecutors barely noted the Aguilar ruling, the high court’s most recent and authoritative pronouncement on the law of obstruction of justice.

Instead, Reps. Asa Hutchinson (R-Ark.) and Chris Cannon (R-Utah) cited sections of earlier, lower court rulings that spoke of the law’s broad scope.

In her rebuttal, White House Deputy Counsel Cheryl Mills raised the Aguilar case and read portions of Rehnquist’s opinion.

White House lawyers have maintained that Clinton did not think Currie was going to be a witness, either in the Paula Corbin Jones sexual harassment case against him or before the grand jury later impaneled by independent counsel Kenneth W. Starr. They said the president was worried about the “media onslaught” over the Lewinsky scandal.

In recent days, the obstruction of justice charge has become the centerpiece of the Senate trial, at least for the Republican majority.

By authorizing depositions of Lewinsky, Blumenthal and presidential confidant and powerful Washington lawyer Vernon E. Jordan Jr., Senate Republicans have decided to focus on the facts of the case, rather than the law.

For his part, Rehnquist is not likely to intervene in the proceedings. He believes that the Senate has the “sole power” to try impeachments and that no court or judge has the authority to intervene.

Even though the Constitution makes him the presiding officer during the trial, it does not give him the power to act as a true trial judge. If it did, White House lawyers could ask him to dismiss the charges because Clinton did not commit the crime of obstruction of justice, as determined by the Supreme Court.

Nonetheless, several legal experts said they think the obstruction of justice charge is weak.

The Aguilar decision “undercuts their case,” said Georgetown University Law Professor Paul Rothstein. “Politicians tell false stories and it is despicable but it is not obstruction of justice.”

Washington attorney Robert Luskin, who represented Aguilar before the Supreme Court, said he is not surprised that the case has resurfaced. “The court said there has to be a nexus between the false statements and some impact on the grand jury,” Luskin said. “It is not enough to say someone tells a lie and it . . . may eventually go before the grand jury.”

The other parts of the obstruction charge allege that Clinton obstructed justice in the private civil lawsuit brought by Jones.

It is extremely rare, prosecutors say, to bring a criminal obstruction charge over an evidence dispute in a civil lawsuit. In such cases, lawyers are entitled to cast a wide net for evidence that might be deemed admissible during the trial.

In the Jones case, U.S. District Judge Susan Webber Wright ruled in December 1997 that Jones’ lawyers could seek depositions from other female employees who might have had sex with Clinton. Based on this order, Jones’ lawyers asked to interview Lewinsky and ordered her to turn over gifts from Clinton.

In mid-January of 1998, Starr’s prosecutors intervened. They alleged that Lewinsky or Clinton may have obstructed justice in the Jones case.

On Jan. 29, Wright handed down a second order saying that “the Lewinsky evidence . . . is not essential” to the Jones case and may be “inadmissible.” On April 1, she dismissed the lawsuit entirely.

No Separate Law on Sexual Harassment

Despite frequent references to “the federal sexual harassment laws,” there is no separate law on sexual harassment. Congress in 1964 made it illegal for employers to discriminate against workers based on race or gender and the courts have said harassment of a woman on the job can be deemed job discrimination. The law, however, makes clear that the plaintiff needs evidence of job discrimination, and Jones did not have it, Wright ruled.

So, can Clinton be convicted for the crime of obstructing justice by seeking to hide evidence in a civil suit that was deemed peripheral and was later dismissed entirely as fundamentally flawed?

Several legal experts said the law on this point is not clear. Attorney Luskin said the law “clearly covers obstructing in a civil proceeding,” as in the Jones lawsuit, and Clinton could be charged with violating it.

However, Rothstein disagreed. “You need something that would have an effect on the ultimate tribunal, and the Lewinsky evidence was going to have no influence on anything,” because the case was thrown out of court, he said.