Did Clinton really do it too?

Slate's Tim Noah defends the Libby commutation, arguing that the former president committed perjury as well, but his argument doesn't hold up.

By Alex Koppelman

Published July 3, 2007 5:33PM (EDT)

Slate's Tim Noah has already gotten the coveted "Wanker of the Day" award -- and a long excoriation from Digby -- for his latest column, which defends President Bush's commutation of Scooter Libby's prison sentence. So while we don't want to pile on, we do think it's worth pointing out that Noah makes at least two errors of fact in the piece.

Part of Noah's argument is that Libby's sentence was unfair given the fact that former President Bill Clinton escaped punishment for his lies about his relationship with Monica Lewinsky.

"No fair-minded person can deny that the previous president committed perjury about Monica Lewinsky while serving in the Oval Office," Noah writes. "The country knew it, and it let him get away with it ... Is it really fair to treat White House aides more harshly than ordinary citizens when presidents get off scot-free?"

But that's simply not true. Though it's become conventional wisdom that Clinton committed perjury when he lied under oath about Lewinsky during the Paula Jones lawsuit, that question is in fact far from having a definitive answer.

It's important to draw a distinction here: Lying under oath is not the same thing as perjury. The federal statute regarding perjury -- as well as many state statutes, but Clinton was testifying in a federal lawsuit, so that's the law that applies here -- requires that the lie be about something material to the case at hand. And the question of whether Clinton's lies were material to the case is by no means settled. Indeed, the judge in the case, Federal District Judge Susan Webber Wright, ruled that the Lewinsky issue was "not essential to the core issues" of the Jones lawsuit and excluded all evidence about Lewinsky from the suit.

There is still an argument to be made that Clinton's lies were material to that case, and the conservative legal scholar Judge Richard Posner, who is on the U.S. Court of Appeals for the 7th Circuit, has made it. But there are plenty of "fair-minded" people who disagree; another eminent legal scholar, Ronald Dworkin, wrote a lengthy takedown of Posner's arguments for the New York Review of Books, itself a well-respected publication.

"Posner's own argument for the materiality of Clinton's deposition lies is very weak," Dworkin wrote. "... [T]he pertinent question is not whether Clinton's false statements 'might' have been material, as Wright said, but whether they were material beyond a reasonable doubt. ... So Posner's claim that Clinton was 'clearly' guilty of perjury in the Lewinsky deposition is unjustified."

There is also the question of whether Clinton committed perjury in his grand jury testimony, but here too Dworkin has an answer:

"The case is somewhat stronger that Clinton committed perjury in his televised grand jury testimony when he insisted, contrary to Lewinsky's testimony, that he had not touched her breasts and genitals. The standard of materiality for a false statement before a grand jury is easier to meet than the standard for materiality in a civil action: a lie is material in the former context if the truth might have influenced the grand jury's decision whether to indict someone for a crime. But the only evidence ... that Clinton's grand jury statement was false is Lewinsky's contrary description of their sexual activities, and Posner himself reports that Lewinsky lied to her friends on several occasions about the details of these activities ... Posner chooses to believe Lewinsky in this instance, and he may be right to do so, but once again his claim of proof beyond a reasonable doubt that Clinton lied seems strained."

We don't mean in any way to defend Clinton here, or his actions. But it is at least worth getting the facts of his case right. And in this instance, it seems to us pretty clear that plenty of "fair-minded" people can deny that Clinton committed perjury, and have.

Speaking of which, we noticed one other error that Noah made in his column, at least by implication.

"[Judge Reggie] Walton gave Libby 30 months and a $250,000 fine, then further twisted the knife by denying Libby's routine request to delay the sentence while his lawyers appealed it," Noah writes.

It is in fact routine for someone who's just been convicted of a federal crime to request that his sentence be delayed and that he be allowed to remain free on bail during appeal. But what Noah implies here is that Walton's actions in denying Libby's request were not routine, and that's not true at all. Actually, it takes quite a bit for a defendant to prevail in such an argument; as conservative commentator and former federal prosecutor Andy McCarthy pointed out in a post for the National Review's blog the Corner, "The presumption in favor of incarceration may be overcome, as relevant in this case, only if the judge finds that 'the appeal ... raises a substantial question of law or fact likely to result in (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) [a reduced sentence that would amount to less than the time it will take to prosecute the appeal].'"

And it wasn't just Walton who turned down Libby's request for bail; it was a three-judge panel of the District of Columbia Circuit Court of Appeals, a panel containing the notoriously conservative Judge David Sentelle. It was the panel's decision that seems to have prodded Bush to announce the commutation yesterday. We are, frankly, a little baffled as to how Noah could have glossed over that point.

Noah did not respond to an e-mail and voice mail seeking comment.

Alex Koppelman

Alex Koppelman is a staff writer for Salon.

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