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“But Clinton Did It Toooooo!” Redux: It’s The Perjury, Stupid!

Just as sure as snow in January or robins in spring, the whiny children pushing the "but Clinton did it toooooo!" theme are trying to put our forty-second president's evasion of a badly-constructed perjury trap set up in the midst of a bogus lawsuit that never made it to court as somehow being much, much MUCH worse than Scooter Libby's lying under oath in order to protect himself and his bosses from feeling any sort of consequences for lying us into war and the needless, senseless killing of at least 800,000 people over the past four years.

Now as I've mentioned before, I am not a lawyer.  But I lived through the 1990s and wound up learning a little bit (much of which I almost immediately forgot) about certain facets of the law — such as perjury.   And guess what?  Ironically, for all the people who holler "but Clinton did it too!'", Clinton's statements are most definitely not perjury, whereas the same is not true of Libby's — and might not be true of certain statements made by Victoria Toensing at the Plame hearing last Friday.  Follow me past the jump and I'll explain.

The United States Code has very strict standards for what constitutes perjury. (And even stricter standards for what constitutes committing perjury while testifying for a grand jury, as Scooter Libby was charged with doing in two of the five counts against him.)  In order for a given statement to be perjury, each one of the following five criteria must be met — and if any of these criteria are NOT met, it's not perjury:

1) The statement must be made under oath.
2) The statement must be material to the case at hand.
3) The statement must be known by its maker to be false.
4) The statement must be demonstrably false.
5) The statement must have been made with an intent to mislead.

Let's compare the situations of Scooter Libby, Bill Clinton, and Natasha Toensing.

#1:  The statements in question by all three were uttered under oath, so the first criteria is fulfilled.   So far so good.

#2:  Here's where the divergence happens.  Libby's and Toensing's statements were definitely material to their respective cases at hand.  Clinton's statement, however, was not.  Here's why:  He was asked about a consensual sexual relationship with one woman (Monica Lewinsky) while he was supposed to be quizzed about an alleged sexual harrassment of another (Paula Jones). 

(Brief digression here:  Just how bogus was the Jones sexual harrassment suit? Well, it actually started out as a defamation suit, but was changed to a sexual-harrassment suit after Jones' string-pullers realized they couldn't sue for defamation since Clinton never talked about Jones, much "defamed" her.   Also, as mentioned above, the suit never made it to court.  Pity:  I would have loved to have seen how the people behind the suit dealt with the embarrassing questions raised in this Salon article.) 

In other words, the statement he made was to a question that had nothing to do with the case at hand — it wasn't material.  (Ya wanna talk "no underlying crime", Libby defenders?  I gotcher "no underlying crime" right heeeere.   Not only was the question not material to the case, the case itself was found wanting and dismissed.)

The upshot: Clinton's statement is not perjury.  Period.  It didn't make it past the materiality test. (This is almost certainly why even the hostile Republican Senate was compelled to acquit him on this charge in the impeachment vote.)

But let's go ahead and continue the comparisons, anyway.

#3:  This one is tougher for prosecutors to prove than you might think.  A clever defense attorney can use all manner of techniques to defeat it, including the "Sergeant Schultz defense" (where one purports that one's high-powered client is too stupid to breathe and therefore could not have known he or she was lying) or the "Bright Shiny Object defense" (where the defense attorney tries to baffle 'em with bullcrap), without even needing to fall back on the old last-resort standby, "jury nullification" ("yes he did it but he's really a good guy and the law sucks anyway"). 

Patrick Fitzgerald managed to demonstrate, to the satisfaction of a DC jury, that Scooter Libby knew he was lying and that while he did it on behalf of others, that didn't mean he deserved to skate.  Victoria Toensing, in the course of her misstatement fiesta last Friday (which Scarecrow and emptywheel discussed earlier today), made a great show of saying that she knew what she was talking about with regard to the Plame case as she "wrote the law" governing spies and secrecy, the Intelligence Identities Protection Act or IIPA. (As Larry Johnson noted last month, she's been making a big show of her expertise in this regard for some time, and her statements at the hearings are similar to what she has said in the past on this.)  So with her own past history, she's just made it a lot more difficult to pull off any type of "Sergeant Schultz defense" against perjury charges in this situation, in my non-expert opinion.

But what about Bill Clinton, when he said that he didn't have sex with Monica Lewinsky?  Well, turns out that — just like Newt Gingrich and a fair majority of college students quizzed by the Journal of the American Medical Association in the late 1990s — both he and Monica didn't consider oral sex to be the same as the sex that makes babies.   In fact, in one of the many phone calls that Linda Tripp secretly taped with Monica Lewinsky, Monica tells Tripp flat out "We didn't have sex, Linda!" It didn't help that the Jones legal team, which was probably working with Ken Starr's OIC to set up their perjury trap, failed to nail down a definition of sexual relations that would be guaranteed to cover hummers.   

So guess what?  Even if Clinton's statement wasn't already disqualified as perjury by Criterion #2, it is by Criterion #3 — in fact, it isn't even lying under oath, as far as I can see.

#4:  The problems in proving this criterion are similar to those for #3.  And as with #3, Libby's and Toensing's statements meet the criterion, whereas Clinton's does not. 

#5:  Again, Patrick Fitzgerald did a magnificent job of demonstrating Libby's intent to mislead, and the jury agreed with Fitz' conclusions.  As for Bill Clinton, this could be provable, but it doesn't matter as his statement has already failed to pass three of the other four criteria for perjury. 

Now, Vicky Toensing's statements could be argued either way, but to judge from her past associations and connections, I'm guessing that somebody like Patrick Fitzgerald would probably be able to convince a jury that she knowingly made demonstrably false statements under oath with intent to mislead.  He'd have a lot easier time going after her than he would have going after Bill Clinton, that's for sure.  But then again, Patrick Fitzgerald would never have brought a bogus nuisance suit against Clinton in the first place, much less one that was so shoddily constructed.

A final note:  The media's handling of the Paula Jones suit is the perfect answer to those who say that you can't have smoke without fire.  In this case — as with pretty much all the other "Clinton scandals" — the smoke was coming out of a smoke machine with "GOP/Media Complex" stenciled on the side.  And as both Atrios and Matt Stoller have noted today, the Republicans, often allied with conservative Democrats, have controlled most or all of Washington's levers of power for most of the last few decades.   The Clintons, centrists though they were and are, threatened this cozy arrangement and so had to be brought to heel — hence the tremendous amount of garbage that was thrown at them.  (Mind you, I personally think that the biggest actual scandal of Clinton's tenure was "welfare reform".  If we're going to go after the man, go after him for that, not for bogus stories about fathering black hookers' kids and the like.)

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