From the Same Set of Facts: A Tale of Two Stories

The senators will hang. We knew the result before the trial began. Without explosive new evidence, two-thirds of the Senate will not vote to convict President Bill Clinton or to acquit him. Yet, it would have disparaged House Republicans had the Senate failed to convene a trial. So a marginal House majority, demanding partisan allegiance from its Senate colleagues, has forced a trial that a majority of the entire Congress, probably, and the great majority of Americans, surely, do not want. How’s that for democracy? Yet, the trial must go on, at least for a few more days. But if we know the outcome, what’s at stake?

A lot, actually. The battle that began Thursday in the Senate is, first, about the president’s reputation and influence. If you’re a GOP prosecutor, you want to discredit the first and diminish the second. If you’re the president’s lawyer, you want to impede both goals by proving the president’s conduct was legal and, in any event, does not warrant removal.

But there’s more. Even if you know you can’t win (or lose), you want the verdict to be as favorable to your side as possible. The White House would like to win with a majority vote, meaning at least six (and preferably more) Republicans must defect. House prosecutors, in turn, want to lose with as large a majority as possible, preferably one that includes at least a half-dozen Democrats. Finally, there’s the inevitable censure resolution. What will it say? House prosecutors want strong language that skewers Clinton’s defenses and vindicates the decision to impeach. The president wants the opposite.

So though the result may be a foregone conclusion, other outcomes are anything but. That explains why the Republicans want to call witnesses and the White House does not. Witnesses provide drama and detail. Detail is bad for Clinton, whose factual defense is the same incredible story he’s been trying to sell since August. Testimony, however, may win House prosecutors a few more votes to convict. It will also focus attention on the president’s refusal to testify at his own trial. Imagine what Rep. Asa Hutchinson (R-Ark.), a former U.S. attorney, or Rep. James E. Rogan (R-Glendale), a former deputy prosecutor in Pasadena, could do with Clinton on the stand.

In other ways, too, each side is angling to exploit its advantages and its opponent’s weaknesses. Start with the prosecution’s one great advantage. The facts of this case--including Monica S. Lewinsky’s false affidavit; her job search and eventual job (“mission accomplished,” Vernon E. Jordan Jr. told Clinton); the retrieval of gifts the president gave her; the president’s false statements to the nation; his lies to friends and aides who would testify before the grand jury; and his Sunday morning interview with his secretary Betty Currie immediately following his deposition in the Paula Corbin Jones sexual-harassment case--can be explained in only one way, according to the Republicans’ argument: Beginning in late 1997, Clinton resolved to deny first Jones, then independent counsel Kenneth W. Starr and now Congress the truth about his affair with Lewinsky and his subsequent efforts to conceal it. He did this by lying, by encouraging others to lie, by indirectly feeding lies to the grand jury and by obstructing justice through the attempted concealment of subpoenaed evidence. Only the irrefutable fact of an unanticipated stained dress impeded the scheme and forced the president to admit an “inappropriate intimate relationship.” Yet, he now asks us to believe that the rest of his story is true.

This is a powerful argument, a trial lawyer’s dream, because, as the incidents accrue, it becomes increasingly difficult for the defense to offer an innocent explanation. So it is no wonder that, except for Clinton’s lawyers and subordinates, not even his strongest supporters make much effort to argue his legal innocence.

The president’s lawyers, however, must try. It is their greatest hurdle. They have attempted to overcome it through what we might call the Theory of Coincidence and the Theory of Technical Innocence. The Theory of Coincidence takes each allegedly unlawful act in isolation and offers an innocent explanation. For example, the president’s help in getting Lewinsky a job was a favor to someone he liked. If it looks like a reward for silence, well, that’s just a coincidence. Did Clinton mislead his aides? Well, that was to avoid embarrassment, not in the hope that they would unwittingly give false testimony to the grand jury. The fact that they did so is another coincidence. Unfortunately for Clinton, this theory becomes impossible to credit as the coincidences mount.

The Theory of Technical Innocence posits that even if Clinton behaved badly, nothing he did meets the technical definition of a crime. For example, the president has argued that his answers to certain questions at his deposition in the Jones sexual-harassment case cannot be perjury because, though misleading, they were “literally true.” Here, too, Clinton has a problem. Federal courts have held that even a literally true answer can be perjurious if, though seemingly responsive to the question, the witness knows it is false in the broader context and intends to mislead.

But Clinton has a certain advantage here. Though it is easy to establish his deposition perjury, the House rejected an impeachment article based on that testimony. Meanwhile, the charge of grand-jury perjury, which the House did adopt, is harder to prove. To avoid this dilemma, House prosecutors allege that Clinton lied at the grand jury about whether he lied at his deposition, thereby hoping to prove deposition lies indirectly. As Rogan told the senators, the “assertion before the grand jury that he testified truthfully in the Jones deposition is itself a perjurious statement.”

White House lawyers have tried to block this backdoor effort through a remarkable but largely unnoticed concession. Their brief says that “the president was not asked to and did not broadly restate or reaffirm his Jones deposition testimony.” Subtly but surely then, Clinton has distanced himself from his deposition answers. His lawyers do not want to have to defend them.

If the president’s defense is weak on the facts, it is strong on the appropriate consequences. The reasons not to remove the president are compelling. Clinton’s behavior concerned private conduct. It had its origin in an effort to conceal sexual misconduct and avoid humiliation and familial recrimination. Clinton correctly viewed the Jones litigation as a politically motivated effort to harm him. The nation opposes the president’s removal. No grand jury would have investigated the Jones case if the defendant was a private citizen. Unlike a private citizen, the president was not truly free to take the Fifth Amendment before the grand jury. Aside from denying that he lied at his deposition, his alleged grand-jury perjury concerns the timing of the affair with Lewinsky and how he touched her--not the kinds of lies that should lead to impeachment, much less removal. Nearly all the obstruction-of-justice allegations concern misconduct in connection with the Jones civil case, not the subsequent criminal investigation. The one exception is the charge that Clinton lied to aides about Lewinsky, anticipating that they would repeat that lie before the grand jury. On this record, removal is excessive. So was impeachment.

A perennial lawyer tactic is to argue that a particular result (the one the lawyer disfavors) would, if allowed, have extreme consequences. So the White House brief argues that “the very stability of our constitutional government may depend upon the Senate’s response to these articles.” The House prosecutors, equally apocalyptic, predict that “if the president is not convicted, then no House of Representatives will ever be able to impeach again and no Senate will ever acquit.” Neither prediction is true. The nation will remain strong whatever happens to Clinton. The decision should be made on the facts, not prophecies of doom. The facts require censure, not removal.

But the facts also require something else. The Senate, with something close to unanimity, must repudiate the president’s legal and factual defenses. It will dishonor the Senate to let Clinton trumpet a failure to remove him as exoneration or to pass a compromise censure resolution that is purposefully vague about whether the president broke the law. The essential allegations that House managers began to spell out this week are true. The Senate must say so.*