First off, Bricker, thanks for starting this thread. I was reading the other thread - and I may have popped in with a question or comment, but didn’t want to add to the hijack.
That, and as is about to apparent, my legal knowledge (especially related to criminal law) is quite lacking.
I have a question or two that I hope a legal-type could address. I apologize if it is naive.
The specific question:
How did an investigation into a real estate deal in Arkansas evolve into an impeachment proceeding over the ML episode?
Now, I only want a few paragraphs that explains how this happens. Telling me to read the Starr report or some other tome requires effort beyond my desire to understand. OTOH, if it can’t be answered in a few paragraphs, I understand that too. Maybe answering this general question would suffice.
The general question:
Are there legal mechanism/protections that prevent law enforcement witch-hunts? Seems to me, dig deep enough into any human’s life, and you’re going to be able to find some dirt. When investigations/warrants/special prosecutors are established, is there anything to frame the objective, and prevent it from simply becoming a wide-open search and destroy mission?
This particular aspect of the BC/ML episode has always bothered me. In some sense, I could expect it to be handled by prosecutor discretion - and that is where I suspect I am being naive.
Bricker, I’ll add another question: Why are you still arguing this? Are you trying to convince us that the We Gotta Get Clinton For Something campaign was actually justifiable, or are you only trying to exonerate your own self for supporting it?
Although you explicitly tried to ban the “real world” that clearly troubles you so from the debate, that qualifier alone negates any value of this discussion by exposing its insubstantiality.
Elvis1Lives: I posted this thread because I wanted to stop the hijack in the linked thread. That hijack was initiated by one Frostillicus, who offered the following “rolleyes” comment in debate about whether Mr. Bush lied about the Iraq situation:
That comment was (a) not relevant to the debate, and (b) a deeply flawed analogy, since Mr. Clinton’s impeachment was predicated on a series of lies under oath, a situation that did not exist for Mr. Bush. So I pointed those flaws out, which resulted in Diogenes leaping forward to claim perjury in a civil trial was not a federal crime, a point mindlessly echoed by DrDeth. I offered the evidence to correct that misapprehension, which Diogenes has graciously acknowledged, and, in an effort to end the hijack, summarized the Clinton impeachment evidence roughly as I did in this thread’s OP: he was never indicted, much less convicted, so to say he is legally guilty is wrong. But had been been convicted, there is enough evidence to support that verdict – a rational, reasonable jury could have found him guilty. If anyone disputed that statement, I offered to start another thread to prove it.
And here we are.
Now, you say, Elvis1Lives:
There’s something to that. This discussion doesn’t purport to prove Clinton was guilty. The “facts” I’m relying on have never really been adversarily tested – had Mr. Clinton been on trial, he would have had the chance to subject Ms. Lewinsky to cross-examination, a process designed to expose the weaknesses in her story. The mere fact that she initially swore nothing happened, for example, is damaging to her credibility. There’s no telling how a jury might have reacted to a trial.
But at the same time, those who say things like, “It wasn’t even a federal crime!” or “The judge ruled the issue was immaterial!” are making mistakes of fact. Those deserve to be corrected.
Generally I let those comments pass, unmolested. But the smug certainty of DrDeth’s assertion that there was no federal crime roused me from my torpor, and gave rise to this thread.
So, if you prefer to argue solely in the real, it-happened-or-it-didn’t world, then your case is made. No jury ever found Mr. Clinton guilty. Period.
I disagree only with the part of your post that I bolded. I don’t agree that a jury would necessarily agree that the ruling was sufficient, and I have to point out that Judge Wright did not explicitly rule that testimony under discussion was material, she just said she hadn’t yet ruled that it was immaterial, meaning she may or may not have allowed it to come in at trial.
I would also argue (although less strenuously) that a jury may not have even found that he was untruthful. As was pointed out in Dewey’s seminar paper above, the defendant must believe his own statement to be untruthful. It might be possible to argue that the question was phrased in such a way as to cause confusion for the president and lead him to believe that a bj was not included in the definition of sex. The phrase “oral sex” was specifically crossed off of the written definition and BC was told to go only with part one of the definition, which was phrased in such a way as to suggest that only he was being asked if he had done anything to her.
Please note, I’m not suggesting that this is a strong argument, only that it is a possible argument and you never know what a jury will buy, especially in a “celebrity” trial, as it were.
Also, why should it be assumed that Wright’s own decison would be upheld by an appelate court? I know that it’s unlikely that she would be reversed but it’s not impossible is it?
Your conception of the real world remains too small. In the real world, such a charge would never have been investigated, much less brought.
It remains, not a mystery, but a marvel, how so many people, even lawyers, were willing to dismiss the principle of equal protection under the law to justify trying to find something that a particular person might be guilty of for transparently political reasons. It is a marvel how such people are willing to select a small jewel that prospectors had been digging for for years as the ultimate, overriding, transcendent corruption and abuse of the law while shrugging off the selectivity of the prosecution itself. It is as clear now as it was to the majority then what degradation of the process was more dangerous to the integrity of the law itself.
The “real world” you’re dismissing in this apparent search for self-vindication is the underlying principle of justice itself and all that it represents. You’re dismissing the reasons there are laws in an attempt to examine a possible infraction of them. Are you willing to discuss those facts and their implications, not only the narrow ones you’ve self-selected in some attempt to “win” a debate for once? I’ll ask again, why are you really on about this subject?
You ask for a basic answer. Here it is, colored at least a bit with my personal feelings:
There were allegations of wrongdoing, both of the shady-ethical variety and the outright criminal variety, with regards to the Whitewater land deals. A special prosecutor was appointed to investigate these allegations. This was done because one of the targets of the investigation was the President, and the Justice Department was in an untenable position of investigating their boss.
While spending thousands of man hours and hundreds of thousands of dollars, criminal wrongdoing was uncovered, but no criminal actions by the President or the First Lady were revealed.
While in the middle of these investigations, the special prosecutor was contacted by attorneys for Paula Jones, who was pursuing a civil suit against the President. The Jones attorneys said that while persuing their civil case against the President, they believed that the President had suborned perjury by instructing witnesses to lie. The special prosecutor asked for, and was granted, permission to expand the scope of his investigation from Whitewater to the issue of perjury in the Paula Jones case.
The Paula Jones team had credible evidence that the President and Ms. Lewinsky had engaged in sexual activity. But Ms. Lewinsky had submitted an affadavit denying any such thing. The Jones lawyers, however, had numerous tapes of telephone calls between Ms. Lewinsky and Linda Tripp, in which Lewinsky described sexual encounters with the President.
Ms. Jones’ attorneys asked their trial judge to order the President to submit to a deposition. The judge did do, and Mr. Clinton swore under oath that he had no recollection of ever being alone with Ms. Lewinsky, that he never had a sexual relationship with her, and that Ms. Lewinsky’s denials were absolutely true.
The Paula Jones team turned this evidence over to the special prosecutor. After confronting Ms. Lewinsky with the conflict between her sworn statements and the tapes, she admitted her earlier sworn statement was a lie, and recounted several sexual encounters with the President.
That is how the investigation for one crime, ultimately fruitless, became an investigation for a completely separate crime.
There was unquestionably an element of “witch-hunt” to this series of events.
I’m not sure I agree that digging deeply into anyone’s life will produce a situation in which they are willing to lie under oath.
In this case, the special prosecutor’s mandate was to investigate a land deal. When evidence of unrelated crimes was brought forward, he could not unilaterally go forward; he needed the Attorney General to propose expanding the scope – which Janet Reno did, and a court to agree, which the Special Division of the federal Court of Appeals for the DC Circuit granted the request to expand jurisdiction.
That’s the first bulwark against prosecutorial overreaching – the requirement for a neutral, detached judicial review of the scope.
In addition, the prosecutor usually has a budget with which to fulfill all the functions of his office. He must decide how to commit his resources effectively. He could assign a crew of investigators to install video cameras on a crosswalk for around-the-clock surveillance to nab jaywalkers. This would be legal - but a poor use of his money.
In this case, since the profile of the target was so high, the prosecutor’s decision was to expend large amounts of money on a relatively trivial violation – something that likely would not have been done if the target were an ordinary citizen.
But it’s important to note that the jaywakers caught on camera in my example above cannot claim immunity from prosecution just because they were only caught out of an excess of zeal. All people must obey the law - or, to put it another way, it’s no defense to the charge of witchcraft that the accusers were on a witch-hunt.
Heh. I chuckled at the bolding thinig before I read your disclaimer.
ANyway, you misapprehend me. I don’t say that a jury WOULD find that the ruling was sufficent - much less that a jury would even have found him guilty. Frankly, had it gone to a jury, I think there’s a better than even chance a jury would never have convicted him.
But that’s not what I’m saying. I’m saying that there is sufficient evidence for a jury to find him guilty, if they chose to believe it. This is distinguished from a case in which there is simply no credible evidence of a crime.
I agree with this point as well. You never know whata jury might do. The jury might well have had at least one member who felt this was such a witch-hunt that he votes for acquittal out of pure sympathy for the accused. And, frankly, I’m not so sure I’d be especially harsh in talking about such a juror.
No, not impossible. But again - my point is that IF a jury found him guilty, and if he appealed that verdict based on sufficiency of the evidence, he would lose that appeal.
We might be getting dragged down by a lack of understanding of how appeals work. If a jury finds a fact to be true, then an appeals court cannot distrub that finding – UNLESS there is no credible evidence to support it.
Let’s take a pair of examples. Fred Frederickson and John Johnson are both on trial, in separate cases, for bank robbery.
The prosecution’s evidence against Fred is that a teller identified him as the one who pointed a gun at her and demanded money, and he was arrested three blocks from the bank. Nearby, a gun and the stolen money were found under a dumpster. Fred testifies that he was never in the bank, and that he saw someone who looked a lot like him stuff the money and gun under the dumpster and run away.
If a jury convicts him, he will not likely be able to appeal based on sufficiency of the evidence. The reason is that there was a piece of evidence that the jury believed: the testimony of the teller. That evidence was sufficient to find him guilty. He cannot go to the appeals court and argue that the teller was confused, or that his own testimony was uncontradicted and should be believed. The jury has made its decision, there is sufficient support in the record for it, and the appellate court cannot find otherwise. (Note that Fred may still have many other grounds for appeal - this deals only with sufficiency of the evidence).
Now let’s consider John. John is also accused of bank robbery. The prosecution’s evidence is that John was arrested several feet from a bag of money and a gun stuffed under a dumpster - the bag of money had moments ago been stolen from the bank, and the gun used to effect the robbery. But the teller could not identify John specifically as the one who robbed her, although she did say that he could have been the one. John also testifies that he was never in the bank, and that he saw someone who looked like him run down the alley and stuff the money under the dumpster.
The jury convicts John, and he appeals based on sufficiency of the evidence. The appeals court will overturn John’s conviction, because even though the jury believed him guilty, they didn’t have enough evidence to do so. There is no support in the record for a finding of guilt.
OK?
All I’m saying - and all I’ve ever said - is that there is sufficient evidence that, if believed, a jury could convict Mr. Clinton for perjury. That’s not to say he is guilty, that’s not to say a jury WOULD. Just that the evidence is there, if believed.
Ok, I guess I didn’t realize that “sufficiency of evidence” was a specific grounds for appeal, I misunderstood your use of that phrase as a suggestion that the jury and/or appelate court had to accept to accept Judge Wrights finding of materiality as binding. I understand where you’re coming from now. IANAL, I just watch them on TV.
So here’s where we agree: Clinton did enough that he could have been technically charged, and perhaps convicted of perjury, a federal crime. The evidence was sufficient enough, that if a jury had convicted it would not have been overturned on those grounds.
We also seem to agree, that while the above may be legally and technically true, that it was also a ticky-tack violation and that it was the result of a politically motivated investigation which had failed to find any criminal behavior by the POTUS in the matter which the Special Prosecutor was originally charged with investigating.
Instead of starting with a crime and finding out whodunnit, the SP started with a target and investigated evry aspect of his life until he could find a crime.
It may be true that some people could stand up to the kind of scrutiny that BC underwent, but not very many, I suspect. I also have some pretty grave misgivings about Starr’s tactic of investigating friends and associates of his target, finding out stuff they did like cheating on their taxes or stealing from their jobs, indicting them (on charges unrelated to BC) and then offering them immunity if they would say something bad about Clinton.
If a witness suddenly changes his story to jibe with what the prosecutor wants simply to avoid a long prison term, I have to really wonder about that witnesses’ credibility (not to mention the SP).
Yes, we’re in agreement on the points you outline.
Another somewhat troubling aspect to this case, from a criminal defense point of view, is that Mr. Clinton was denied (or denied himself, anyway) many of the useful tools available to an accused.
While an ordinary defendant can simply shut up, and say nothing, Mr. Clinson had the pressure of publicity to deal with, and the political reality that to say nothing would be tantamount to admitting the truth of the accusations. This is not how our criminal justice system is supposed to work, and is in fact antithetical to the process. But the special prosecutor repeatedly sought to trap Mr. Clinton between the vise grip of public appearance and admisssions.
In the end, though, I expect the President to be clean. He made a choice, I think, to lie. I don’t agree with that choice under those circumstances. Yes, he was in an unfair position. But…
…but I’m reminded of an old episode of Happy Days, in which Richie is being taunted and threatened by a bully. Richie debates various ways to get the bully off his back, and concludes he may have to fight the guy. He asks The Fonz for advice: “What would you do if you were in my position?”
“Richie,” replies Fonzie, “I wouldn’t be in your position.”
As unfortunate as the circumstances were, the President was the one that gave his attackers the rope they needed. An honest man would not have been in the position Mr. Clinton found himself.
All this goes far afield of the OP, of course, but we seem to have agreed on the premise of the OP, so…
Bricker, thanks for the taking the time and effort to address my question - you provided even more than I had hoped for, and I appreciate it.
It did raise another specific question for me, and I hope you would address it (noting that it is somewhat off-topic to the OP, and that you have no obligation to provide any legal education to me).
Did the special prosecutor have any obligation to make known, to either Lewinsky’s attorneys, or to Clinton’s, the existence of the tapes and the content thereof, prior to obtaining the depositions?
I was under the impression, perhaps naively, that once a prosecutor comes across new material evidence, that they are obligated to share that evidence with the defense attorneys.
One last detail - since the tapes were obtained (by Tripp, not the special counsel) illegally, how could they be used to support the special prosecutor’s case?
Since I notice that Mr. Bricker (counselor, master, demi-god… I’m not sure of the proper term) often enjoys chastising the ignorant masses of their lack of legal knowledge, I have this observation.
If I am wrong, I will freely admit to being a clueless dipshit.
The court said that the “Court did not rule that evidence of the Lewinsky matter was irrelevant or immaterial”. Does that mean that the court ruled that the evidence was relevant and material?
I don’t think so, but if I’m wrong I will apologize.
It’s true that there comes a point at which the prosecution must disclose its evidence, both inculpatory and exculpatory, to the accused. (Inculpatory evidence is that which tends to show the accused is guilty, and exculpatory evidence is that which tends to show him innocent). But the case against Mr. Clinton never reached that stage.
The accused is not entitled to know what the prosecution has against him until he’s been indicted, in such reasonable time as to prepare for trial.
Yes - but again, this obligation is only triggered at a particular stage of the criminal process, and the case against Mr. Clinton never reached that stage.
Because a person cannot vicariously assert another’s constitutional rights.
If the police enter your home without a warrant, and discover pictures of you, me, and Diogenes having group sex with a llama, you may successfully suppress those photos; they were seized in violation of your Fourth Amendment rights.
Diogenes and I are not so lucky (unless it was a really hot llama). Neither one of us has the standing to contest a search of your home. The pictures are admissible against us.
The tapes were made, possibly illegally, by Ms. Tripp, of Ms. Lewinsky’s conversations with her. They probably could not have been used as evidence in a trial against Ms. Lewinsky. But Mr. Clinton has no standing to object to them.
At a trial, they probably could not have been used against Mr. Clinton because of a rule of evidence called the hearsay rule. But to support the issuance of a warrant, for example, they would have been perfectly fine.
Well, Bricker, I posted hastily and did not make myself clear in the other thread. OK, I concede that IF someones DOES commit Perjury in a Federal Civil Trial- then that Perjury is a federal crime. Fine.
But the point is- Clinton did NOT commit perjury. His act of disengenousness rose only to “contempt of Court”. Now- is Contempt of Court a “Federal Felony”? Especially at the level of punishment the Judge inflicted.
Next- your quoted section does say that the Judge did not find the Lewinsky matter to be “immaterial”. However, does the opposite always come true? Did she then rule it WAS material? And even if the part of the Lewinsky issue was material- it does not appear that Clinton’s prevarication was material.
Then- as Dioneges & Dewey pointed out- in order for it to be Perjury the “lie” must be knowing- and BC has a strong defence there due to the poor wording of the question. They chose the poor wording- and perhaps on purpose. They could have wording the question in such a way that Monica giving Bill a BJ would have been clearly what they were after- in fact- there was nothing stopping them from asking that exact question. Why didn’t they? If they wanted was evidence for their case- the Paula jones case- then since they already knew what had happened- then they should have asked that very question, as that would have helped their case, right? After all- the avowed purpose behind the PJ case was to show that BC harrassed her- and their point in dragging in ML was to show that BC treated women he had sex with better, right? So if the purpose was to show that ML performed sexual favors for BC- why didn’t they ask THAT question? The only reason I can see is that they wanted BC to lie, they were asked by Starr to word their question in such a way that BC could prevaricate, and thus Starr could tel all the nasty details to the Pubic, and Congress. Could that not be entrapment? Or grounds for disbarment of PJ’s counsel?
Now, yes, Bricker- you have “proved” one rather meaningless thing- that IF a Jury had been offered that evidence- that they COULD legally have convicted BC of Perjury. Big deal. There isa HUGE leap from that to your statment that “Clinton commited a Federal Felony”. You see- first they would have had to indict him for Criminal Perjury- they didn’t. Then the Jury would have had to convict him- nope. Thus- BC wasn’t guilty of any Federal crimes. Unless there was a conviction that we, as lowly non-lawyer laypeople don’t know about? You’re the big expert here- is someone guilty of a crime before they are convicted- or only after? Just my silly-ased laymans opinion here, but I’d have to say “after”- at least in this country.
In fact- could they prosecute BC for Perjury after he has already been fined for that same prevarication during a Contempt hearing? Could they indict & convict BC for Criminal Perjury after he already had a “trial” by the US Senate? I would think that the fact he wasn’t convicted by the Senate to be a “not guilty” of every crime in the indictment. Or can you say otherwise?
You do have a lot of knowledge, and you ARE ( I concede) an expert. But when you post an “opinion” which isn’t backed up by fact- don’t come off like your opinion is worth more than ours. Face it- the facts are- Clinton was NOT convicted of any Federal felonies- right? Thus, he is NOT guilty of any Federal Felonies. “Ipso facto”
Don’t go putting words in my mouth. My seminar paper was an analysis of the perjury issue – but it ultimately concluded that Clinton had indeed committed perjury. Yes, I pointed out that one of the elements of a perjury charge is that the accused must be found to have believed he was telling an untruth. I also pointed out that the test for that belief is an objective (not subjective) test. That is, the relevant question is “would a reasonable person standing in Clinton’s shoes have thought he was telling the truth?” For a lot of reasons, each of which are discussed in the paper, I think arguing that such a belief on Clinton’s part would be wholly unreasonable.
The rest of your post is silly. So what if the matter never came to trial? Are we to be prevented from taking the known facts, applying the law to those facts, and drawing our own conclusions solely because no jury has ever been empaneled on the matter? Good lord, is calling OJ a murderer verboten because a criminal jury said he wasn’t guilty?
The judge didn’t rule on materiality one way or the other. If the testimony was not material, there was no perjury. Period.
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).
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?
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.)
As I said at the beginning of this thread, if your argument is that Mr. Clinton was never found guilty in a criminal trial, then I agree. What I said at the beginning of this thread, as well as in the WMD thread discussion, is that there is sufficient evidence of perjury to sustain a conviction as a matter of law.
Materiality for the purposes of a criminal charge was never ruled upon, since Mr. Clinton never faced a criminal trial. For the purposes of the civil deposition, the judge’s ruling did find that the Lewinsky material was material (December 11, 1997 Order at §3 )
You’re right in your unspoken assertion that merely because the judge found the evidence material in the civil deposition doe snot mean that a criminal jury, hearing a perjury case, would have also found it material. All it proves is there was sufficient support in the record for them to find it material. Who knows what they actually would have done?
That’s not so. The President was asked if he had any recollection of ever being alone with Ms. Lewinsky. He replied that he did not. There was no ambiguity about the wording of that question, and no problem with which definition of “sexual relations” should be used. (President’s Deposition at 66).
This is going to be another case of “typing hastily,” DrDeth, on your part. The short answer is “No.”
The longer answer is that they did ask that question. But generally, lawyers don’t ask witnesses, “Did she give you a blowjob?” Instead, they ask, “Did you engage in sexual relations with that woman?”
Now, in a criminal trial, say for sexual assault, the prosecutor questioning the victim needs to get a little graphic. He does this because he must make a record that proves the elements of the crime. So a prosecutor will ask a victim, “Did the defendant’s penis touch your mouth?” If the victim answers in the affirmative, then the jury has enough to find the attacker guilty - if they choose to. But if a prosecutor uses a euphemism, then the accused can appeal, saying that the prosecution never established the exact elements of the crime.
But the nitty-gritty of a criminal sexual assault was not at issue here. Instead, we have a civil lawyer trying to prove harrassment, and trying to show a pattern. He does not need to definitively prove each and every element of a criminal charge - he merely needs to get on the record that there was sexual contact.
Was it “entrapment?” No. Entrapment is a legal defense to a crime. In order to be entrapped, an agent of the government must unduly influence or persuade the accused to commit the crime. The government agent is permitted to offer the opportunity; entrapment only happens when the agent exercises undue persuasion.
Paula Jones’ lawyers were not government actors - they were private citizens. No entrapment occurs when a private citizen urges another to commit a crime. Even if they had been government agents, no entrapment defense is available here. “Undue influence” is not asking someone a question under oath, even if you think they might lie.
Nor is there any aspect of this conduct which could lead to disbarment. If you think there is, by all means step up and identify what portion of the ethical rules for lawyers were broached by either the special prosecutor or Ms. Jones’ lawyers.
Well, the Constitution forbids the indictment of the President, DrDeth. So faced with evidence of criminal conduct, the only possible thing to do is ask the House to vote articles of impeachment. And this was done.
Yes, I can say otherwise. There is no authority for the proposition that either a contempt of court citation or a “not guilty” vote from the Senate operates as a bar to a subsequent criminal prosecution. While the case law on impeachments is admittedly sparse, the case law on contempt citations not serving as a double jeopardy bar is extensive. A person can be cited for contempt, and the same behavior can also serve as the basis for a subsequent criminal charge.
No argument there. Mr. Clinton is, to this day, legally innocent of any federal felonies.
The testimony (even if false) was not material, and so any prosecution based on that testimony would have ended with a motion to dismiss being granted. In other words, a perjury prosecution based on this evidence would never even have made it to a jury, much less resulted in a conviction (ithe absence of reversible error by the judge).
(Still waiting to hear how a consensual blow job is material to a harrassment suit…)
