Members of Congress have been conflating "perjury" and "lying under oath" in their accusation against President Clinton, using the two terms interchangeably as though they are synonymous.
They are not. Perjury is a far more serious crime, and it requires a much higher burden of proof. "Lying under oath exacts a lower penalty and lower modicum of proof," says Washington attorney Stanley Brand.
A close reading of Clinton's testimony in the Paula Jones case, and before the grand jury, reveals a cagey witness who could be found guilty of sexual selfishness, if that were a crime, but not of perjury, nor lying under oath.
In fact, independent counsel Kenneth Starr did not charge President Clinton with perjury in his September referral to Congress. Starr charged only that Clinton had lied under oath, both in his Jan. 17 Jones deposition and to the grand jury on Aug. 17, about whether he'd had sexual relations with Monica Lewinsky; that he had lied about not remembering being alone with Lewinsky; and that he had lied about conversations he had with Lewinsky and Vernon Jordan about the Jones case.
The Supreme Court has ruled, says Brand, that "to prove perjury, there must be corroborated proof of the intent to lie, and the lie must be material to the case. Perjury can't be proved if you are cute with your answers and thereby evade answering. Clinton is absolutely entitled to rely on every legal means to protect himself, because he is facing civil and criminal prosecution, plus impeachment."
Many other legal and constitutional scholars have made the same point. Lying under oath, false statements and omissions also require intent and materiality, says Brand, "but to prove perjury requires proof that he conscientiously and purposefully lied in an unambiguous way."
How did the president avoid committing perjury when he denied having sexual relations with Lewinsky in the Jones deposition, which was released by the House on Wednesday? By outfoxing the Jones lawyers, who failed to form questions and follow-ups that would have forced Clinton to be specific about the details of his relationship with Lewinsky. The definition of sexual relations presented to Clinton was a strange one. It clearly did not include oral sex performed on him, nor sexual intercourse, nor even kissing, and Clinton, who had never seen that definition until that moment, told the grand jury that he read it very carefully.
It said: Sexual relations occur "when the person [Clinton] knowingly engages in or causes contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person [Lewinsky] with an intent to arouse or gratify the sexual desire of any person [Lewinsky]." Clinton testified that, under that definition, he did not have sexual relations with Lewinsky. He did not quite say, but the inference is unmistakable, that his intent was not to arouse or gratify Lewinsky. Without stating such a politically incorrect motive, he implies that he was really only interested in his own gratification.
So, what else is new? If women were running the world, maybe that would be a crime. But under current law, Clinton had a right to make evasive and misleading but factually correct statements in the Jones deposition. He exercised a vigorous defense, which is his prerogative.
Further undermining Starr's charge is Lewinsky's own statement to Linda Tripp on tape that what she and the president did together did not amount to sexual relations. "Sexual relations means sexual intercourse," said Lewinsky. "We were just fooling around, Linda, just fooling around."
But Republicans are pushing the loaded term "perjury," knowing that it carries heavy legal weight with the citizenry, including some Clinton supporters. Much of the news media is also using the terms "perjury" and "lying under oath" interchangeably, thereby obfuscating the distinction between them. Even Starr, who obviously knows better, described the president's testimony as "perjurious" numerous times in his Nov. 19 testimony before the committee, although -- significantly -- not in his referral.
So murky is the case against Clinton that the articles of impeachment charging him with perjury did not even specify which statements were perjurious. When asked by Rep. Gerald Nadler, D-N.Y., to identify the specific statements in the record, Committee Chairman Henry Hyde couldn't do it. Instead, Hyde got shy, and resisted reading sections of the Starr Report that detailed exactly which of Lewinsky's body parts she says Clinton touched. That touching would seem to fall within the tortured definition of sexual relations in the Jones case, unless the definition is read as Clinton says he read it.
But Hyde's sudden attack of squeamishness was likely a cover for his real worry: about the fuzziness of the charges against Clinton. The committee's explosive hearing Thursday revealed a level of confusion about the exact charges against Clinton, even in the Republican caucus, that should doom the impeachment move against him, but probably won't.
If Hyde's true motive was aversion to publicly discussing the sexual details of Clinton's relationship with Lewinsky, he probably would have stopped the impeachment railroad before it began. Because, assuming this gets to a Senate trial, the prurient details aired there are going to make this week's committee hearing seem like "Sesame Street."