So what was the criminal case against Bill Clinton?

Great Debates
101

What Sua said. As a judge in a bench trial, I wouldn’t have convicted on the convoluted definition of sex, but I would have nailed him on claiming not to have touched Monica’s naughty bits and answering “I don’t remember” to the question of whether they were ever alone together. Blatant falsehods. I’d be tempted to nullify as a jury member just because I believe the Jones lawsuit and Starr’s investigation were both crazy-bad abuses of process, but I’d probably vote to convict because, well, he lied under oath.

Juries don’t get to decide materiality, from what I’ve seen. And whether or not Clinton had a pattern of banging the help is most certainly relvant to whether he tried it with Paula Jones.

So fine him $50 and send him on his way.

102

I’d hate to get accused of adding another “me too” post :rolleyes:, but Bricker has answered the OP very well. I would like to add one thing about the materiality argument. As stated before, the Supreme Court has said that a statement is material if it has “a natural tendency to influence, or was capable of influencing, the decision of’ the decisionmaking body to which it was addressed.” Lower courts have ruled that 1) The subject of the statement can be on a collateral issue. 2) misrepresentations involving a witness’s credibility are routinely considered to be material, and 3) The decision maker need not rely on the statement for it to be considered material. However, the traditional inquiry into materiality doesn’t exactly fit in the venue of civil discovery. The testimony is not actually addressed to any decision-making body. The testimony may, in fact, never be heard by the fact-finder. Also, the testimony may be excluded by the rules of evidence. Because of these differences, federal courts have a difference of opinion on what should be considered material in civil discovery depositions.

The Second and Fifth Circuits say a statement is material if it “might reasonably be calculated to lead to the discovery of evidence admissible at the trial of the underlying suit.” In earlier cases, they also have held that the “test of materiality goes to questions asked, during investigation, on a relevant and material subject. The questions propounded fell within the scope of the Pretrial Order [regarding discovery] and, therefore, in the opinion of the district judge covered an area within the parameters of the complaint.”
[sub]Do you see now why I raised Judge Wright’s initial order regarding what was relevant, Sua?[/sub]

The Sixth and Ninth Circuits have a much narrower test for materiality in regards to civil discovery, one that requires not only that the testimony be discoverable, but also that it has the possibility of affecting the underlying suit.

Now, turning to Clinton. his lies, IMNSHO, are clearly material. First, Judge Wright’s initial ruling regarding discovery would clearly make it material under the first test for materiality. She ruled that it was discoverable, and thus material. Second, in Judge Wright’s latter ruling regarding the admissibility of the Lewinsky evidence, she specifically concluded that the “Lewinsky-related evidence might be capable of influencing the ultimate decision in the lawsuit.” Hence, materiality. I think it is clear that if the looser definition of materiality is used, then Clinton clearly committed perjury. If the more strict test is used, you may have a closer call. However, I think in either case, Clinton committed perjury. I would’ve charged it as a prosecutor. I would’ve convicted him if I was the judge or jury.

And, as a side note, please stop with the whining about how Clinton was entrapped, and the the OIC set him up in a “perjury trap.” He’s a big boy, who made a decision that he would lie under oath. Regardless of how you feel about the “witchhunt,” Clinton wasn’t legally entrapped. He made the decision to lie. And he did.

103

Actually, I think the jury would be the one to decide the materiality issue. You can be darn sure that if he was charged with perjury, Clinton’s attorney would argue there was not enough evidence of materiality to submit to a jury, and that both parties would argue over the definition of materiality to be instructed to the jury, but I think the final decision would be up to the jury.

And as to jury nullification, don’t even get me started.

104

As is often the case, I’m in nearly complete agreement with SuaSponte.

As a prosecutor, I would have offered roughly the same deal as the Hypothetical Defense Attorney Bricker proposed above: to wit, agree to the surrender of the law license for a period of years, and I’ll drop the criminal case.

I’d do the same against any member of the bar, regardless of his political affiliation or standing. And I would decline to prosecute a similar case against a layman. Members of the bar must be held to a high standard; failing to do this undermines public confidence in the profession. A lawyer has an independent duty of candor towards a tribunal; as a lawyer, Clinton knew this.

Why not simply proceed with bar disciplinary proceedings, then?

Because a criminal investigation is accompanied by powerful tools, not the least of which is the grand jury process. A bar hearing, while admittedly needing a lesser standard of proof, is not the mighty weapon that a grand jury is.

However, let’s roll things back a bit.

As a Justice, I would have ruled that the civil case against a sitting President could not proceed. I believe that compelling a sitting President to be subject to discovery was a violation of the separation of powers, and the negative effect of tolling such civil claims is slight: after all, there is only one President every four years; no matter his tortious actions, they can surely be addressed before that time. It’s not as though such immunity would have a sweeping effect on our society – for a tortfeasor to take advantage of this safety net, he would need to be elected President.

I recognize it places a certain hardship on the would-be litigant wronged by the actions of the President before he took office, but I believe that this is a slight issue - we are, after all, not dismissing the suit, merely staying it until the term of office is over.

Under this view, of course, the deposition in which Mr. Clinton lied would not have happened until his term had ended; he may not have chosen to lie at that time, or, if he did, I’d have supported the criminal and professional penalities described above.

  • Rick
105

[QUOTE]
*Originally posted by Hamlet *
[sub]Do you see now why I raised Judge Wright’s initial order regarding what was relevant, Sua?[/sub]

Indeed I do. Thanks for the legal education, Hamlet.

I want to strongly emphasize this. As regards the Paula Jones deposition, Clinton could have simply refused to answer the question. Had he done so, he would have been liable for discovery sanctions, such as a permissible negative inference from his refusal to answer, or an order refusing to allow him to challenge assertions by Jones that he had had a sexual relation with Lewinsky, or simply a monetary fine.

As for the grand jury, Clinton never had to appear to testify in the first place. There is no obligation to appear before a grand jury if your are the party being investigated. Indeed, most defense lawyers don’t allow their clients to so appear - unless they think it will benefit the client.

Sua

106

However, as a judge, you would have been bound by the SCOTUS decision the other way. (It happened to be unanimous IIRC, though it would be binding regardless.)

Your personal view of this decision is interesting, but it’s not directly relevant to the legal case against Clinton.

107

I consider being truthful as being part of his job.

pldennison

What exactly do you mean “you can’t compare them”? Surely you don’t literally mean that I can’t compare them, because you yourself stated that I did compare them, so what do you mean?

How does this follow from the proceeding?

rjung

What exactly was the lie?

108

Bricker, I absolutely agree that the Supremes screwed the pooch by allowing the Paula Jones lawsuit to proceed while Clinton was in office. (Also, yeah, I modify my earlier post - as a prosecutor, I would have offered a similar plea bargain.)

Putting aside the current court’s record on other issues, they are the Keystone Kops recently when it comes to decisions concering the Presidency.*

Sua

*I’m not arguing that the election decision was necessarily wrong; I believe that they should never have taken the case in the first place. The appropriate forum was the House of Representatives.

109

Isn’t that special. The Founding Fathers didn’t. If they did, it would be in the Constitution.

Sua

110

Sua and Bricker – I can see where it might well be in the country’s best interest if a civil case against the President could not procede. ISTM if Congress and the various states passed laws creating such an exemption these laws would be upheld as constitutional.

But, I cannot see how the Contitution requires that civil suits against the President be delayed until he’s out of office – particularly suits in state court. Just because something appears good for the country doesn’t mean that it’s Constitutionally required, does it?

111

This is, I believe, the quintessential example:

and TR I believe that rjung is referring to Bush’s statements right after 9/11 that "we couldn’t have known they’d use planes as missiles to destroy buildings’ (paraphrased), since it’s clear that such info was available to those giving briefings to the pres. but of course, further discussion of that would be a major hijack of the thread, so if you have further objections to that etc, don’t question me, open a new thread.

112

Correct. As I’ve already said, as a judge in a bench trial, I’d have convicted Mr. Clinton, assuming the only evidence I heard was the evidence we’ve discussed above.

The wisdom of the Supreme Court’s decision to permit a sitting president to be subject to civil process is probably worth its own thread. However…

It does not, true. But because the Constitution provides such a key role for the President, I believe the Court should have found that the Constitution DOES require such immunity. However, my opinion is valueless, until G. W. Bush calls me to say I’m on the short list of Supreme Court nominees. The real answer, as you suggest, is that the Constitution does not require immunity for the President while in office.

  • Rick
113

Sua, I don’t think I changed the question. The legal process isn’t only the trial; it includes the decision to file or not file and to investigate or not investigate. Those are pretty big deals. Prosecutorial discretion isn’t an afterthought; it’s at the heart of the justice system itself. It’s cleaner rhetorically to make a separation there, but it isn’t quite as honest to do so, IMHO.

Apparently the lawyers here would feel bound to convict, as jury members, but agree that the case was bullshit. Fair enough.

While I’m addressing you, the Conservative 5 on SCOTUS are hardly Keystone Kops. They know exactly what they’re doing - but following principles higher than partisanship aren’t included.

Re the statement that Clinton didn’t have to answer: That’s no doubt true legally; but this was a political case dressed in legal clothes. He was responding politically. Politically, not answering would have been worse than answering, which thereby exposed the case as the sham it was. Refusing to answer makes it look like there’s a factual reason not to answer, in the public eye. So let’s drop the idea that it was really an option.

Hamlet, an interest in justice, and the principle of equal protection even for people you don’t like, is hardly “whining”. 'Tis a pity you disagree. Tell that to your next client, m’kay?

minty, I’m surprised you forgot that the Paula Jones suit was alleging job discrimination, not rude behavior. Consensual activity, at a later date at that, hardly illuminates an allegation that someone else’s job advancement had been adversely impacted by a refusal. But Scaife, er, make that “Jones’ attorneys” didn’t investigate other instances of job discrimination by Clinton at all, did they? And Judge Wright didn’t stop them from pursuing a matter that was obviously irrelevant as soon as Lewinsky told them it was consensual, and that she hadn’t suffered any retaliation for it.

The evidence for Starr’s attempt to suborn Lewinsky into saying otherwise is circumstantial, of course - except for her saying so (and we’re choosing to believe her for purposes of supporting the conviction, are we not?), as well as there being no other good explanation. But be that as it may - it was an attempt to get someone that Hamlet and others thought needed to be gotten.

114

You really think that the FF wrote down everything they expect from a president in the Constitution? Why?

115

D.C. Code Ann. § 23-542 (1999): It is legal to record or disclose the contents of a wire or oral communication where the person recording is a party to the communication, or where one of the parties has given prior consent, unless the recording is done with criminal or injurious intent. A recording made without proper consent can be punished criminally by a fine of no more than $10,000 or imprisonment for no more than five years. However, disclosure of the contents of an illegally recorded communication cannot be punished criminally if the contents of the communication have “become common knowledge or public information.”

Anyone who illegally records or discloses the contents of a communication is subject to civil liability for the greater of actual damages, damages in the amount of $100 per day for each day of violation, or $1,000, along with punitive damages, attorney fees and litigation costs. D.C. Code Ann. § 23-554 (1999.)

116

The Ryan, in a recent Pit thread, you asked for an example of certain negative posting behavior that you are infamous for indulging. This quote:

Is exactly what they were referring to.

Just some constructive criticism, my man.

117

They wrote down everything that the President is required to do. Expectations are a completely different thing. They expected a President that would act more like a King. They expected a President that would live in the lap of luxury. What they got is mostly based on a bunch of precedents set by Ol’ George.

I note how you are shifting the focus of your argument from the requirements of the President to what a President is expected to do. Methinks you should try to maintain a consistent argument.

118

How is this negative posting behavior? How you would you suggest that I deal with a statement I cannot make sense of?

I don’t recall ever using the term “requirement”. If I did, it certainly wasn’t with the sense you are using it. My argument is based entirely on the word “faithfully”. “Faithfully” implies not lying. Whether not lying is part of the requirements spelled in the Constitution is not relevant because the word “faithfully” imposes duties beyond what is explicitly spelled out.

119

Ok it’s been long enough without a Clinton thread on page 1…

Actually I am bringing this back because I have just read the expanded online version of Ronald Dworkin’s review of the Posner book that december mentioned, which can be found here. It is a good review, but the main thing which struck me, and which I am asking about here, is something he says in the appendix: that the

Posner refers to two SCOTUS decisions that refused to dismiss indictments as proof that, essentially, Rule 6(e)2 of the Federal Rules of Criminal Procedure can be ignored by prosecutors. Dworkin points out that the first decision cited is limited in scope:

and that in the second decision cited

The cases are 1. U.S. v. Mechanik, 475 U.S. 66 (1986) and 2. U.S. v. Williams, 504 U.S. 36 (1992).
The Dworkin article goes into more detail, and is worth reading just because it’s good.
So what do y’all think- would the leaks of the grand jury testimony, testimony which is supposed to be secret, have been enough to have gotten a criminal indictment against Bill Clinton dismissed? Maybe that’s why Ray didn’t pursue it, even though he said he could have.
JDM

120

Good lord, Mr. Anal Wordsmith, I can’t believe you screwed this pooch. “Faithfully” does not imply not lying. In certain contexts it does, but not always.

Example: “Why won’t this damn souffle rise? I followed the recipe faithfully.”
In this context, “faithfully” means that I adhered to the recipe without deviation.

Example: “Poor Jean-Louis. He faithfully followed Napoleon to his doom at Waterloo.”
In this context, “faithfully” means that Jean-Louis was steadfast in his loyalty to Napoleon.

Example: “I can faithfully say that if you learn how to count cards, your odds of winning at blackjack will greatly improve.”
In this context, “faithfully” does not mean or imply that I am not lying to you. Instead, it means that I strongly believe in the benefits of card counting.

But, you say:

Nope. In this context, “faithfully” simply means: “firm in adherence to promises or in observance of duty” (From Merriam-Webster). It means that the person taking the oath will do the duties of the President of the United States. And, as has been noted, the duties of the President of the United States are set forth in the United States Constitution. And “don’t lie to folks” is not one of the enumerated duties

As for your last question to me:

Of course not. I’m sure they expected that a President wouldn’t pick his nose in public, or get drunk and vomit on the French Ambassador. But the question is - did the FF “expect” that a President who lied to the American people had violated his Oath of Office?
To answer that, we can turn to a time-honored staple of Constitutional interpretation - the conduct of the FF’s. And we find that many of the FF’s, when President, lied to the American people. Read some history about the conduct of Presidential re-election campaigns of many of the FF’s. False allegations of adultery, illegitimate children, alcoholism and worse abound.

Sua