# Yet Another Clinton Perjury Thread **URL:** \ **Category:** Great Debates\ **Created:** [April 29, 2003, 1:14am UTC](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823 "2003-04-29T01:14:12Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 30, 2003, 7:36pm UTC](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823/41 "2003-04-30T19:36:10Z")
**United States Constitution, Section 3** : > [@](#): > > Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but **the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law**. Seems very clear about the impeachment process _not_ being a part of the criminal-law system, doesn’t it? **Bricker** : > [@](#): > > Well, the Constitution forbids the indictment of the President, DrDeth. Oddly, the Constitution offers privilege from arrest only for Congresspersons. Perhaps there’s a law (_not_ part the Constitution) that extends it to the President? > [@](#): > > So faced with evidence of criminal conduct, the only possible thing to do is ask the House to vote articles of impeachment. So, 1. You’re wrong about the nature of impeachment - there is no connection with the legal system. 2. There is no constitutional bar against _indicting_ anyone covered under the privilege from arrest clause, just against arresting them. You’re wrong about that, too. 3. Even if you were right, one “possible thing to do” would have been to simply wait for the end of the President’s tenure in office and deal with the matter then, leaving the indictment shelved - even if its political value is moot by then. The privilege from arrest clause is there _because_ the legal system can be used for political harassment or worse. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [April 30, 2003, 7:44pm UTC](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823/42 "2003-04-30T19:44:18Z")
> [@](#): > > \*Originally posted by Bricker \* > **Well, the Constitution forbids the indictment of the President** I know many experts believe this to be the case. It’s certainly a reasonable position. However, AFAIK it’s not explicitly in the Constitution, nor has it been ruled upon by the courts. Is that correct? ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [April 30, 2003, 8:43pm UTC](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823/43 "2003-04-30T20:43:12Z")
Here is the point, Mr. Bricker, esq. Your statement in the other thread was “…the impeachment of Mr Clinton arose from his lies under oath- a federal criminal offense”. This wording says to me- and apparently several others who read it- that “Mr Clinton was…guilty of a federal criminal offense”. Now, it appears what you were saying is that BC was accused of perjury. (stop, note period) And that Perjury is a federal criminal offense. These two statements taken separately are both true. But when combined into one statement, and separated by a “-”, they indicate to me- and it appears others- that you were saying that BC was guilty. It’s like my statement- Perjury in a civil trial isn’t a federal criminal offense. True- if that is a trial under a State or Local Court- right? And here you agree that BC was not guilty. Next- I don’t know if the President is immune to prosecution WHILE IN OFFICE. In fact- wasn’t aht one of the arguement made- the BC, as a sitting President could not be sued for thsi violation? And wasn’t that argument thrown out? Now, that doesn’t prove that a he wasn’t immune to a similar criminal charge- but still only while in Office. Once out of Office- they could have charged him with Perjury. And- if it was such a “slam dunk”- why didn’t they? After all, Starr certainly hated & despised BC, and there were plenty of Federal prosecutors who could have made a name for themselves by doing so, right? In fact- I can only think of one good reason why they didn’t- they knew they would not get a conviction. They knew that the the evidence that they had did not show beyond a reasonable doubt that BC commited the crime of Perjury. Breach of ethical codes for Lawyers? Is not your attorney supposed to ask questions to get helpful answers to assist in YOUR case? And they did not- they asked a question is such a way that a reasonable person could conclude that they were doing so to get a “no” answer out of BC- which would hurt their case, but assist Mr Starr’s. They knew of the Oral sex. True, Attorneys don’t word their questions like “did you get a blow job”? But certainly asking a question such as “did you recieve oral sex from Ms Lewinsky” would be reasonable- and in fact give them the evidence they wanted for THEIR case. The evidence on the case that they were hired to get- not evidence for Starr. Were they not obligated to get the best evidence they could get to support their client’s alligations? Did they do so? No- in fact they did the opposite. They deliberately worded the question in such a way that BC could say “no”- which would hurt their case, but assist the Special Prosecutors. And this is one of th emany reasons why (including who paid for those lawyers)- that the entire PJ case was not an attempt to get justice for Ms Jones- but to “get” the President. If so- nothing was “material”. How is simply “being alone” with Ms Lewinsky MATERIAL to the civil case at hand? Perhaps his sexual escapades might have some relevance- but there is nothing wrong with “being alone”. Did the Judge rule that question material also? Dewey -sorry if my lumping you in with Diogenes gave the wrong impression. No my argument is not simply that “Mr. Clinton was never found guilty in a criminal trial”- I think we all know that. My point is that Mr Clinton is/was not guilty of a “federal criminal offense”. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 30, 2003, 8:56pm UTC](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823/44 "2003-04-30T20:56:11Z")
> [@](#): > > \*Originally posted by spoke- \* > Furthermore, whether or not the testimony was material would not be an issue of fact for a jury to decide (as you seem to imply, **Bricker** ). Rather, the issue of materiality is a matter of law, for a judge to decide. So a jury could NOT convict Clinton without a judge ruling on the materiality issue (likely via a motion to dismiss). No - or, more precisely, yes and no. There is plenty of case law that stands for the proposition that every single element of a crime must be found beyond a reasonable doubt by the jury (in a jury trial, of course). Even “aggravating factors” that increase the punishment for a crime beyond the maximum must be proved to the jury beyond a reasonable doubt. See Apprendi v. New Jersey. So what happens in cases like this is that the judge will make a threshold ruling of materiality, but the question is left to the jury to decide. The judge cannot instruct them that, as a matter of law, the issue was material. Of course, if the judge rules that, as a matter of law, the issue was not material, the case is over before it begins. > [@](#): > > Do you seriously propose that a judge would rule that testimony regarding consesual oral sex between Clinton and Lewinsky, where no harrassment or coercion was involved, would be material to the Jones sexual harrassment suit? Or that a court of appeals would uphold such a ruling? If so, please defend your position. How would the fact that Clinton had oral sex with Lewinsky make it any more or less likely that he harrassed Jones? A relevant fact is any fact which makes the determination of a contested issue less likely, or more likely. In this case, Jones’ theory was that Mr. Clinton had a common plan or scheme of soliciting his female subordinate employees for sex. One of the elements of a quid-pro-quo sexual harrassment suit is a request for sex by the superior. Jones alleged that Clinton had requested oral sex from her, as well as from other subordinates. She is absolutely entitled to explore whether or not he requested sex from other female subordinates. > [@](#): > > IMHO no appeals court would uphold a conviction on the facts we have here. Well, no _non-partisan_ appeals court, anyway. (The Bush v. Gore decision causes me to wonder if there is such a thing.) It’s unclear to me what grounds you’re talking about. I agree an appeals court might find the issue immaterial as a matter of law, since they are making that determination _de novo_. But it’s hardly a slam-dunk call. - Rick ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [April 30, 2003, 9:15pm UTC](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823/45 "2003-04-30T21:15:11Z")
I’m saying the testimony is immaterial as a matter of law, and that a (non-partisan) appeals court would so rule. > [@](#): > > She [Jones] is absolutely entitled to explore whether or not he requested sex from other female subordinates. The information is _discoverable_, yes. But you’re a lawyer **Bricker**. You know that there’s a important difference between _discoverable_ information and information which is ultimately _relevant_ (the former being a much broader category). The discovery process is generally very wide-ranging, and allows a plaintiff to uncover all sorts of information about a defendant. However, much of that evidence may be ruled irrelevant at a later stage of the litigation. You don’t disagree, do you, that some discoverable evidence ultimately gets excluded as irrelevant (immaterial) at the trial stage? My point being that while Mr. Clinton’s sexual relationship with Lewinsky may have been _discoverable_ (and indeed, that he might have been subject to sanctions for contempt of court for failing to reveal it in response to a direct question), the information was ultimately irrelevant and immaterial. (This is so because there was no element of coercion or harrassment in the case of Miss Lewinsky. There was no similarity to the Jones situation. For that matter, prior or subsequent similar acts are generally inadmissible anyway, as you know, unless a pattern of behavior is so pronounced as to constitute a “signature,” which doesn’t seem to have been the case with respect to BC and harrassment of underlings.) ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [April 30, 2003, 11:36pm UTC](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823/46 "2003-04-30T23:36:44Z")
> [@](#): > > \*Originally posted by spoke- \* > \*\*Furthermore, whether or not the testimony was material would not be an issue of fact for a jury to decide (as you seem to imply, **Bricker** ). Rather, the issue of materiality is a matter of law, for a judge to decide. So a jury could NOT convict Clinton without a judge ruling on the materiality issue (likely via a motion to dismiss). \*\* This is simply false. See _US v. Gaudin_ [515 US 506](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=515&page=506) (1995), in which the Supreme Court unanimously decided that materiality must be decided by a jury in a criminal perjury trial as a matter of both the fifth amendment’s requirement of due process and the sixth amendment’s guarantee of a jury in criminal proceedings. In that case, the trial judge ruled on materiality as a matter of law as part of a federal perjury conviction; the Ninth Circuit reversed and the Supreme Court agreed with the Ninth Circuit. The test for materiality is pretty simple: the perjured statement must have “a natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed.” _Gaudin_ at 509, quoting _Kungys v. United States_, [485 U.S. 759](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=485&page=759) at 770 (1988). The testimony need not affect the ultimate issue at trial to be “material,” nor is the actual effect of the perjured testimony or final disposition of the case relevant to the materiality inquiry (see paper for citations). I hate to keep flogging that old seminar paper, but it really does break down the perjury statute and how the courts have interpreted it. You might want to take a look before you make another wild-assed statement of law that turns out to be completely wrong. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 1, 2003, 2:39am UTC](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823/47 "2003-05-01T02:39:13Z")
> [@](#): > > \*Originally posted by december \* > \*\*I know many experts believe this to be the case. It’s certainly a reasonable position. However, AFAIK it’s not explicitly in the Constitution, nor has it been ruled upon by the courts. Is that correct? \*\* Correct. I shouldn’t have so cavalierly said that the Constitution forbids the arrest of the President. Because such an event would impinge greatly on the separation of powers, and because as far back as 1867 the Supreme Court enunciated complete presidential immunity from judicial direction for acts of his office, there has always been a sense that the President was beyond the reach of ordinary criminal process. Watergate brought this question squarely in front of the nation, and unfortunately it was never addressed. In United States v. Nixon, and Nixon v. Sirica, the government argued that the grand jury had no power to even name the President as an unindicted conspirator. The Supreme Court had accepted the President’s petition to review the grand jury’s action, but ultimately dismissed the petition without reaching the question. - Rick ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 1, 2003, 2:51am UTC](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823/48 "2003-05-01T02:51:40Z")
> [@](#): > > \*Originally posted by spoke- \* > The information is _discoverable_, yes. But you’re a lawyer **Bricker**. You know that there’s a important difference between _discoverable_ information and information which is ultimately _relevant_ (the former being a much broader category). The discovery process is generally very wide-ranging, and allows a plaintiff to uncover all sorts of information about a defendant. However, much of that evidence may be ruled irrelevant at a later stage of the litigation. You don’t disagree, do you, that some discoverable evidence ultimately gets excluded as irrelevant (immaterial) at the trial stage? What, in your view, is served by placing a deponent under oath during a deposition? If discoverable, the issue was material _for the purposes of the deposition_. If it was discoverable but not ultimately admissible, then a lie about it at trial would be immaterial. But deponents are placed under oath during depositions precisely to avoid this issue: a deponent may not pick and choose when to tell the truth during the proceeding. While it’s true that an evasive or untruthful deponent is subject to sanctions in the context of the trial, one that lies is also subject to perjury charges. While my experience in civil law is limited, I do know that in your ordinary, run-of-the-mill deposition, the judge is not available to immediately rule. Deponents, through counsel, will often object to a particular question, but then, notwithstanding and subject to that objection, will often offer an answer. In cases in which they absolutely refuse to answer, the judge will get involved, and make a ruling. In this case, the judge was available and able to immediately rule on the issue. That was sufficient, as a matter of law, to make the issue material as to the instant proceeding. As we said earlier, a jury in a criminal perjury trial would still have to find it material as one of the elements of the crime. But you’re way off base on the theory that the issue was immaterial as a matter of law. The only ruling ever made on the issue found it material. - Rick ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [May 1, 2003, 1:11pm UTC](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823/49 "2003-05-01T13:11:16Z")
Ah, the trouble one gets into when declaring oneself an Oracle of Truth. When shown otherwise, it’s better to ignore it and hope it goes away, huh? > [@](#): > > 1. You’re wrong about the nature of impeachment - there is no connection with the legal system. > > 2. There is no constitutional bar against indicting anyone covered under the privilege from arrest clause, just against arresting them. You’re wrong about that, too. > > 3. Even if you were right, one “possible thing to do” would have been to simply wait for the end of the President’s tenure in office and deal with the matter then, leaving the indictment shelved - even if its political value is moot by then. The privilege from arrest clause is there because the legal system can be used for political harassment or worse. A default judgment will be entered. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 1, 2003, 1:37pm UTC](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823/50 "2003-05-01T13:37:31Z")
> [@](#): > > \*Originally posted by ElvisL1ves \* > Ah, the trouble one gets into when declaring oneself an Oracle of Truth. When shown otherwise, it’s better to ignore it and hope it goes away, huh? > > A default judgment will be entered. Or a motion to rehear might be granted. > [@](#): > > 1. You’re wrong about the nature of impeachment - there is no connection with the legal system. When did I say there was a connection to the legal system, and what bearing does this have on the OP? > [@](#): > > 1. There is no constitutional bar against indicting anyone covered under the privilege from arrest clause, just against arresting them. You’re wrong about that, too. I answered this above - it is far from settled law. But let’s assume that you’re right… what does THIS have to do with the OP? > [@](#): > > 1. Even if you were right, one “possible thing to do” would have been to simply wait for the end of the President’s tenure in office and deal with the matter then, leaving the indictment shelved - even if its political value is moot by then. The privilege from arrest clause is there because the legal system can be used for political harassment or worse. I agree. And I agree with the implicit assertion that this investigation was undertaken for political reasons rather than an intense desire to see all civil deponents that perjure themselves brought to justice. But - what of it? What has THIS to do with the OP? All I claimed when I started this thread, and all I claim now, is that there exists sufficent evidence that, if a jury heard and believed it, and convicted, it would survive an appeal for sufficiency of the evidence. None of the evidence actually was presented in a criminal trial. No lawyer was ever permitted to cross-examine anyone. We have no idea how a jury would have reacted; I’m not claiming a conviction was certain or even likely. What I am claiming is… well, what I’ve typed over and over: if a jury did convict, the appeal for sufficiency of the evidence would be fruitless. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [May 1, 2003, 2:37pm UTC](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823/51 "2003-05-01T14:37:25Z")
**Dewey Cheatem Undhow** wrote: > [@](#): > > See US v. Gaudin 515 US 506 (1995), in which the Supreme Court unanimously decided that materiality must be decided by a jury in a criminal perjury trial as a matter of both the fifth amendment’s requirement of due process and the sixth amendment’s guarantee of a jury in criminal proceedings. I believe you misreading the law. The [US v. Gaudin](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=515&page=506) case stands for the proposition that a judge cannot rule that testimony **is** material as a matter of law, for constitutional reasons. However, that decision would not prevent a judge from ruling that testimony **is not** material as a matter of law. Note that the Court says that in order for a _conviction_ to stand up to connstitutional muster the jury rather than the judge must decide that testimony _is_ material. But the cionstitution doesn’t come into play in a motion to dismiss, since a dismissal, rather than a conviction, would be the result of a finding that the testimony was not material as a matter of law. (Or did you think that a prosecutor facing a dismissal for lack of materiality could successfully argue that s/he has a constitutional right to proceed with prosecution?) I will admit that I mis-stated the law slightly before. Testimony cannot be ruled material by a judge (an affirmative ruling) in a perjury prosecution. However, a judge can certainly rule that testimony is **im** material as a matter of law, and dismiss the case based on that ruling. Furthermore, a judge who fails to do so where testimony is clearl immaterial would face reversal on appeal. **Bricker** , you are still confusing discoverability with materiality. Information may be discoverable even if it ultimately proves immaterial. The punishment for failure to reveal discoverable information (or lying about discoverable information) is contempt of court. If the discoverable information also turns out to be material, then the potential punishment gets kicked up a notch to a perjury conviction. I am still waiting to hear how a consensual blow job is material to a sexual harrassment case. How does receiving consensual oral sex make it any more or less likely that sexual harrassment occurred in the case of Ms. Jones? For that matter, how would it even be admissible (much less material) given the rule of evidence I cited above? [Law.com](http://dictionary.law.com/) defines “material” as “relevant and significant.” The testimony we are talking about is neither. Federal Rule of Evidence 404(b) says that such evidence (evidence of other wrongful acts) is generally **ir** relevant. \*\*Bricker wrote > [@](#): > > All I claimed when I started this thread, and all I claim now, is that there exists sufficent evidence that, if a jury heard and believed it, and convicted, it would survive an appeal for sufficiency of the evidence. The problem with your argument is that jury would never _hear_ the case. It would be thrown out on a motion to dismiss because the testimony in question is so clearly irrelevant/immaterial to the Jones case. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [May 1, 2003, 3:58pm UTC](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823/52 "2003-05-01T15:58:01Z")
> [@](#): > > \*Originally posted by spoke- \* > \*\*The [US v. Gaudin](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=515&page=506) case stands for the proposition that a judge cannot rule that testimony **is** material as a matter of law, for constitutional reasons. However, that decision would not prevent a judge from ruling that testimony **is not** material as a matter of law. > > Note that the Court says that in order for a _conviction_ to stand up to connstitutional muster the jury rather than the judge must decide that testimony _is_ material. But the cionstitution doesn’t come into play in a motion to dismiss, since a dismissal, rather than a conviction, would be the result of a finding that the testimony was not material as a matter of law. (Or did you think that a prosecutor facing a dismissal for lack of materiality could successfully argue that s/he has a constitutional right to proceed with prosecution?) \*\* You miss the point. _Gaudin_ stands for the proposition that materiality is a jury issue. That being the case, a judge can only dismiss on an insufficiency of the evidence standard – that is, the judge can only dismiss if the there is _no possible way_ that the perjured testimony could be found to be material by a reasonable jury. If a reasonable jury could find the testimony to be material, then the judge has an obligation not to dismiss the case. Which is basically what **Bricker** has been saying all along: any given jury may or may not find that the testimony was “material,” but there is certainly a plausible enough case to be made for materiality that the issue would not be decided by a judge as a matter of law. PS: I don’t give two shits how [Law.com](http://Law.com) defines anything – the only definition of materiality that matters here is the one put forth by the Supreme Court, quoted in my last post. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [May 1, 2003, 4:16pm UTC](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823/53 "2003-05-01T16:16:46Z")
Indeed, yes Bricker- that is all you claim NOW. But you earlier claimed that “the impeachment of Mr Clinton arose from his lies under oath- a federal criminal offense”. Mr Clinton’s “lies” were not, and are not a “federal criminal offense”. This is the line I called you to task for in the other thread. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [May 1, 2003, 4:20pm UTC](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823/54 "2003-05-01T16:20:47Z")
I didn’t miss anything. The essential rulingsin _Gaudin_ is that a judge may not rule from the bench that testimony is material (owing to constitutional considerations), and that materiality is a mixed question of law and fact. The rest of Rehnquist’s opinion is dictum. Yes, materiality is a mixed question of law and fact. And NO there is not a plausible case that oral sex with Monica Lewinsky was material to the Jones case. Therefore a judge could, should and would throw out a perjury prosecution on a motion to dismiss. Judges dismiss cases all the time upon findings that there are insufficient facts to support a prosection. For the reasons I have already given (most importantly the federal rule showing that the testimony re: Lewinsky is irrelevant), the testimony Clintoin gave is clearly not material. Still waiting to hear (from either you or Bricker) a theory under which that testimony would have been admissible (given the utter absence of any evidence that there was a pattern of harrassment, or that Lewinsky was harrassed). Well? ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [May 1, 2003, 4:22pm UTC](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823/55 "2003-05-01T16:22:49Z")
Scalia’s opinion, I meant. ---
**Author:** ![Mojo](https://avatars.discourse-cdn.com/v4/letter/m/85f322/32.png) [@Mojo](https://boards.straightdope.com/u/Mojo)\ **Post date:** [May 1, 2003, 4:38pm UTC](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823/56 "2003-05-01T16:38:50Z")
> [@](#): > > \*Originally posted by spoke- \* > Do you seriously propose that a judge would rule that testimony regarding consesual oral sex between Clinton and Lewinsky, where no harrassment or coercion was involved, would be material to the Jones sexual harrassment suit? Or that a court of appeals would uphold such a ruling? If so, please defend your position. How would the fact that Clinton had oral sex with Lewinsky make it any more or less likely that he harrassed Jones? IANAL, but wouldn’t it help establish that he had a pattern of initiating sexual relations with subordinates? ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [May 1, 2003, 4:45pm UTC](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823/57 "2003-05-01T16:45:26Z")
But he didn’t “initiate” sexual relations with Lewinsky. If you’ll recall, she was the instigator. (Remember the bit about her showing Clinton her thong?) Furthermore, under [/doc/{@74}?"]Federal Rule of Evidence 404(b)]([http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=](http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=)[jump!3A!27rule404!27), > [@](#): > > Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. There are exceptions, but none of them apply in this case. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [May 1, 2003, 5:34pm UTC](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823/58 "2003-05-01T17:34:24Z")
> [@](#): > > \*Originally posted by spoke- \* > \*\*Still waiting to hear (from either you or Bricker) a theory under which that testimony would have been admissible (given the utter absence of any evidence that there was a pattern of harrassment, or that Lewinsky was harrassed). Well? \*\* Admissibility != relevance. Relevance is a _much_ lower threshold than admissibility. Certainly much evidence might be “relevant” but nonetheless “inadmissible.” For example, if I were to testify that “Bill Clinton told me on the night Paula Jones came to his hotel room that he did not drop trou,” that would be _relevant_ to the question of whether Clinton or Jones is telling the truth, but it would nonetheless be _inadmissible_ under the hearsay rule. Since _relevance_ is the standard – Federal Rules of Evidence 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence,” which essentially comports to the definition adopted in _Kungys_ for materiality-of-perjury purposes – the question of _admissibility_ is irrelevant. FWIW, here is how my evidence prof explained relevance back when I was in law school. He said imagine you were hiring a babysitter. You have before you two candidates who in all respects are exactly the same. As you are making a decision, you hear a rumor – no proof or subsantiation, just a rumor – that candidate A is a child molester. Assuming no additional information is available – you have no way of knowing if the rumor is true or false – how many of you would hire Candidate A? As you might guess, no one raises their hands. The rumor about Candidate A is, in fact, _relevant_ – it tends to make a fact of consequence more probable (however slightly that may be). The rumor would almost certainly be _inadmissible_ in any sort of court case, but it is nonetheless _relevant_ to the question being decided (here, “who should I hire?”) And there are certainly many conceivable ways in which Clinton’s testimony regarding Lewinksy would be _relevant_. For example, it makes Jones’ charges more credible (even if only minimally) by showing Clinton was prone to taking advantage of subordinates for sexual purposes. This is a good rule. Evidence is frequently inadmissible for one purpose but admissible for others. Even the rule you cite – R. 404(b), while generally deying admission of “prior bad acts,” nonetheless permits such evidence of such acts to be admitted if they show “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Depending on how the testimony unfolds, it is also possible that testimony about Lewinksy might be admissible for purposes of impeaching a witness. In short, admissibility is a fluid thing that changes depending on the course of the trial. Whether or not a statement is or isn’t perjury ought not depend on the respondent’s luck in guessing whether or not the testimony will ultimately be admissible at trial. Hewing to the much lower relevance standard makes sense. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [May 1, 2003, 5:55pm UTC](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823/59 "2003-05-01T17:55:09Z")
Please look at the heading for Federal Rules of Evidence 401 _et seq._: > [@](#): > > ARTICLE IV. RELEVANCY AND ITS LIMITS [/doc/{@54}?"]Cite]([http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=](http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=)[jump!3A!27rule404!27) See, rule 404(b) **one of the rules which define the limits of relevance** , and under that rule: > [@](#): > > Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. _I.e._, that testimony is not relevant. Therefore, even under your proposed “relevance” standard, the Lewinsky testimony is not relevant, and therefore not material. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 1, 2003, 8:16pm UTC](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823/60 "2003-05-01T20:16:12Z")
Um… one of the 404(b) exceptions is very relevant here: evidence of past wrongful acts is admissible to prove a common plan, scheme, or motive. If the plaintiff’s theory is that Mr. Clinton routinely propositioned his female subordinates for sexual favors, then the fact that he has a pattern of such behavior is admissible under 404(b). Moreover, since Mr. Clinton denied ever propositioning Ms. Jones, and since she needed to show that this had occured, she is entitled to show Mr. Clinton’s pattern of behavior. It is directly relevant to her theory of the case. - Rick [Previous page](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823.md?page=2) [Next page](https://boards.straightdope.com/t/yet-another-clinton-perjury-thread/171823.md?page=4)