You know what?
Good point.
I hereby revise and extend my remarks. I should have said: “…the impeachment of Mr Clinton arose from his lies under oath – lies which, under certain circumstances, could be prosecuted as a federal criminal offense.”
But you are quite right. What I said above assumed that Mr. Clinotn had committed a federal criminal offense, and that was wrong of me. I apologize and retract that sentiment.
Sorry, but an instance of consensual oral sex does not constitute a “pattern.” While Ms. Jones’s lawyers may have been entitled to explore Clinton’s sexual contact with subordinates in discovery (as I have said)-- so as to determine whether there was a pattern of harrassment or assault of the type alleged by Ms. Jones-- the evidence revealed no such pattern.
In the absence of such evidence coming forward in the discovery period, no judge in his/her right mind would have allowed the Lewinsky stuff to come in at trial.
No “pattern,” no relevance. No relevance, no materiality. No materiality, no perjury.
Bear in mind that any pattern, to have relevance, would have to be a pattern of sexual harrassment or assault, not simply sexual behavior. Propositions are not illegal.
(Besides which, it seems to me that Lewinsky, not Clinton, was the one doing the propositioning.)
Headings are for convenience only. They do not determine the law. **
Yes, and see where that rule says such evidence is “not admissible” – not that such evidence is “not relevant.”
You can elect to believe that “relevance” and “admissibility” are the same thing if you want, but you’d be flat out wrong. Seriously, this is a very, very basic distinction, tested in law school classrooms and on state bar exams. It is foolish of you to pretend otherwise.
Thank you Bricker. Even though we disagree here & there, you are a very knowledgeable dude, and willing to admit you were wrong- well, not really wrong, you just worded your statement poorly- which is what I suspected.
And I still completely agree with Bricker that if Clinton had simply said “I am a gentleman, I refuse to answer that sort of question”, I would have admired him more, and we might have skipped the whole shitstorm- well, some of it anyway.
And I think that the Judge would have had a hard time doing anything to him, given the doubtful relevance of the question. (Note I said “doubtful”, you guys argue that out 
)
Um… what do you think “quid pro quo” sexual harrassment is?
Um…what do you think “quid pro quo” sexual harrassment is, Bricker?
Sorry, but a proposition (even conceding Clinton made a proposition to Lewinsky, rather than vice versa) does not ipso facto equal sexual harrassment. (And that’s for the very reason that there must be a quid pro quo involved to establish that type of harrassment case. There was no evidence of any such quid pro quo in the Lewinsky matter. No evidence that she was offered any job benefits or threatened with on-the-job repercussions if she refused to go along.)
The testimony was “beyond the limits of relevance,” to refer back to the heading of Chapter 4 of the rules of evidence.
(And Dewey, I’m still waiting for a cogent argument from either you or Bricker as to why consensual sex between Lewinsky and Clinton somehow makes it more likely that Clinton harrassed Jones in her hotel room. No sane judge (well, sane and non-patisan) would rule that testimony relevant.)
Bricker wrote:
It’s not that easy to make the exceptions swallow the rule.
What “common plan”? What “scheme”? Was Bill Clinton working on a master plan of some sort? Please explain. And explain how consensual sex with Lewinsky would be relevant?
“Motive?” How would motive be at issue in the Jones case? Is there any doubt (if Jones’s testimony is taken as true) what motives were involved? And how would subsequent, consensual sex with Lewinsky establish such motive?
Furthermore, I really conceded too much even to say that a pattern of sexual harrassment might be admissible. In fact, Rule 404(b) is designed to exclude that very sort of evidence. You simply can’t use a person’s bad behavior on one occasion to show they acted in similar fashion on another occasion. Such evidence is not relevant for that purpose.
Only if the pattern of conduct is so pervasive as to rise to the level of habit ([/doc/{@86}?"]Rule 406](http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=[jump!3A!27rule406!27)) is such testimony admissible. That is a high hurdle, and certainly not met by showing of consensual oral sex with Lewinsky.
Lewinsky is an example of Clinton pursuing sexual favors from one of his subordinates. That may or may not be admissible (depending on the course of the trial and the manner in which it is offered as evidence), nor is it dispositive, but it sure as hell is relevant to the claims made by Jones.
What you don’t seem to grasp is that mere relevance is a very low bar to meet. If a piece of evidence makes a given claim even the slightest bit more or less likely, it is relevant, by definition. Clinton’s conduct with Lewinsky does not need to be a mirror image of his alleged conduct with Jones for that testimony to be relevant.
And it bears repeating: headings are for organizational convenience; they do not determine the law. Rules 404 through 415 deal with inadmissibility of otherwise relevant evidence, as is clear from the text of each rule. A good example of this is Rule 410, forbidding the admission of plea discussions. Obviously, if a criminal defendant spills his guts during a plea discussion, those statements are relevant to the question of his guilt or innocence. They are deemed inadmissible, not because they are irrelevant, but because there is a competing policy interest in excluding those discussions (namely, encouraging plea arrangements). The headings do not determine the law.
Aw hell, Dewey, by that logic, anything’s relevant. An imaginary transcript:
Sorry, Dewey, but you and Bricker are extrapolating relevance beyond where the law will take it. Like I said before, no sane judge would find the consensual (can’t emphasize that word enough) relationship between Clinton and Lewinski was relevant to the Jones case.
If I’m wrong, tell us again why Clinton isn’t being prosecuted?
Look, spoke-, in a case revolving around demands made by a superior to a subordinate for sexual favors, that superior’s sexual conduct with other subordinates is relevant, even if not admissible. The way the defendant manages his relationships with subordinates is clearly an issue in the case. Sexual conduct with other subordinates makes the allegation more likely, even if only by a very small amount. That is the very definition of relevance.
Your counterexamples just don’t do that. Your first example would not be relevant unless the location of the advances was in dispute. They were not. Clinton did not allege “the encounter did not take place in a hotel room;” he alleged “the encounter did not take place at all.” The second example is simply absurd.
As for why he isn’t being prosecuted – like Bricker and I have said all along, it isn’t certain that a jury would reach a guilty verdict. We haven’t been claiming that. Predicting what a jury will decide is a difficult thing to do. Our only point has been that a jury could reach a guilty verdict, and that such a verdict would not fail on evidenciary sufficiency grounds. As a matter of prosecutorial discretion, it is probably wise not to pursue the matter because there is a substantial chance the jury will not return a guilty verdict.
I thought ML was a “former intern” during the time of the (oral) sexual relationship. Could a clear superior/subordinate line be drawn in that case? Is everyone in the government considered a subordinate to POTUS?
Pash
She was a current White House intern at the time of the relationship. If she wasn’t, she’d have no way to get close to the President.
Current intern, former intern, I don’t know.
Point is the relationship was consensual, and in fact instigated by Miss Lewinsky. No conceivable relevance to the Jones case, and utterly immaterial.