Material Girl

February 8, 1999

The central question for the Senate.

The witnesses are coming! In their opening arguments during the impeachment trial of Bill Clinton, the House managers seemed to convince a majority of senators to call witnesses to resolve disputed factual questions. The president's lawyers responded that witnesses are unnecessary because "you have before you all that you need" to conclude that there was no basis for the House to impeach the president or the Senate to convict him. But, after two weeks of tub-thumping, both sides have managed to overlook the fact that the case against the president stands or falls on a straightforward legal question, not a factual one: Does the Senate think the evidence of Monica Lewinsky's consensual affair with Bill Clinton was material to Paula Jones's sexual harassment suit?

If the Lewinsky evidence wasn't material to the Jones suit, then, even assuming that Clinton did everything that the impeachment articles accuse him of having done, he can't be guilty of the crimes of perjury or obstruction of justice. If, by contrast, the Lewinsky evidence was material to the Jones suit, then the House managers should be allowed to develop their factual and constitutional case. In other words, it makes no sense for the Senate to hear witnesses before deciding the underlying question of materiality: Were the questions about Clinton's affair with Lewinsky relevant enough to the Jones suit to have influenced the case at the time they were asked?

The debate about materiality sounds technical, but it coincides with people's conflicting intuitions about whether the impeachment trial is just about sex, as Clinton defenders insist, or whether it's about an offense against the judicial system, denying a civil rights plaintiff--Mrs. Paula Corbin Jones, as the House managers piously called her--of her rights as an American citizen. If Clinton and Lewinsky were correct in their belief that evidence of their consensual affair had no possible relevance to the Jones suit, then they couldn't have intended to deprive Jones of her rights, or to obstruct justice, when they tried to avoid embarrassment by denying the affair. Indeed, even if Clinton and Lewinsky believed that evidence of their affair was material, they can't be convicted of crimes if the Senate now concludes that the evidence was immaterial. If, on the other hand, evidence of the Lewinsky affair could have bolstered Jones's allegations, then Clinton and Lewinsky may indeed have committed perjury or obstruction of justice by attempting to conceal it--regardless of whether or not they believed the evidence was material.

Consider, for example, the first article of impeachment, which alleges that Clinton "willfully corrupted and manipulated the judicial process of the United States for his personal gain and exoneration, impeding the administration of justice" when he "willfully provided perjurious, false, and misleading testimony to the grand jury." Even assuming that Clinton intentionally lied in his Jones deposition--an allegation that the president strenuously denies--he couldn't have committed the crimes of perjury or false testimony in the Jones case or before the grand jury if his lies weren't material in the Jones case. To qualify as perjury, a lie has to be intentional and material. And, as Charles Collier and Christopher Slobogin of the University of Florida Law School point out, Kenneth Starr insisted that the purpose of his grand jury was to determine whether Clinton committed perjury in the Jones case--whether, in other words, he falsely testified as to any "material matter." Questions about matters that were immaterial to the Jones case couldn't, by definition, be material to the grand jury proceeding, so, even assuming Clinton gave false answers to these questions before the grand jury, he couldn't have committed the crimes of perjury or false testimony. If Clinton's lies before the grand jury about his previous, immaterial lies in the Jones deposition were themselves considered material, then Starr's grand jury would have served no other purpose than to set an unbounded perjury trap. Such a Potemkin grand jury would be constitutionally questionable. Even the Republicans on the House Judiciary Committee seemed to concede this in their impeachment report when they noted: "As one of the matters the grand jury was considering was the OIC's investigation of 'whether Monica Lewinsky or others had violated federal law in connection with the Jones v. Clinton case,' materiality would be determined by whether the president's affair with Ms. Lewinsky was material to that case."

So the president's lawyer, Greg Craig, was wrong when he told the Senate, " This case is about the grand jury, and the grand jury alone." The Senate can't in good conscience decide whether Clinton committed perjury before the grand jury, as the first article of impeachment alleges, before first deciding whether the Lewinsky evidence was material to the Jones case. But it also has to decide the materiality question before considering whether Clinton obstructed justice in the Jones case, as the second article of impeachment alleges.

The federal obstruction of justice law is even more technical than the federal perjury law, and it has been dramatically expanded in recent years. For most of American history, the common law crime of obstruction of justice was defined narrowly, largely in response to the fear that unscrupulous government officials might use the law to silence their critics. The first obstruction of justice statute was passed in 1831, in the wake of the sensational impeachment hearings of Judge James H. Peck, a Missouri district court judge with Starr-like tendencies to charge his critics with seditious libel. When Luke Edward Lawless, a lawyer, criticized one of Peck's opinions in a letter to a newspaper, Peck held him in contempt, claiming that the letter tended to "bring odium on the court." Peck was then impeached by the House in 1830 and, after a six-week trial, acquitted by the Senate on a 22-21 partisan vote. A few weeks after the Peck trial ended, however, Congress passed a law dramatically restricting the judicial contempt power, limiting it to misbehavior that took place in the presence of the court itself, "or so near thereto as to obstruct the administration of justice." Section 2 of the act provided for prosecution of a person who would "corruptly, or by threats or force, endeavor to influence, intimidate, or impede any juror, witness, or officer, in any Court of the United States."

For nearly 150 years, the federal obstruction of justice statute retained this gothic language, requiring that a defendant act "corruptly" before he could be punished. The Supreme Court interpreted the requirement of "corrupt influence" to mean that the accused had to intend to achieve a specific, predetermined result that would thwart the administration of justice. When mineworkers, for example, were convicted in the 1890s for obstructing justice by violating an injunction that prohibited them from striking, their convictions were rightly overturned on the grounds that they didn't know that the injunction had been issued and couldn't have intended to violate it. In the classic obstruction of justice cases of the Nixon era, the convictions of H.R. Haldeman and John Mitchell were upheld because there was no doubt they had intended to obstruct justice when they engineered an elaborate conspiracy to destroy wiretaps, burn documents, and pay hush money to the Watergate burglars, and then lied about the cover-up to Senate investigators, trying to pin the blame on John Dean. (Dean, incidentally, had the best line of the impeachment hearing last week: when the House managers alluded three times to his famous warning from the Watergate era that a "cancer was growing" on the presidency, Dean noted on television that they had confused cancer with a hickey.)

In 1982, however, Congress transformed the federal obstruction of justice law by passing the Victim and Witness Protection Act, one of the first of its Reagan-era efforts to get tough on crime. Before 1982, the federal witness tampering law penalized only those who intentionally and corruptly tampered with, or tried to tamper with, actual witnesses to a pending judicial proceeding. Now, the witness tampering law, section 1512, penalizes anyone who "corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to influence, delay, or prevent the testimony of any person in an official proceeding." Chris Cannon, the House manager from Utah, was correct when he emphasized during his presentation last week that a person can commit the crime of witness tampering "even before there is a case under way in which that person might testify," and even if he doesn't explicitly ask a potential witness to lie. By contrast, another section of the obstruction of justice law, section 1503, retains the old nineteenth-century language and provides for the punishment of anyone who "corruptly ... endeavors to influence, obstruct, or impede, the due administration of justice." Most courts have held that you can't violate section 1503, unlike section 1512, unless a judicial proceeding is actually pending.

With these tortuous legalisms in mind, let's examine the most important of the seven allegations of obstruction of justice--or the "seven pillars of obstruction," as House Manager Asa Hutchinson grandly called them--that are found in the second article of impeachment, which charges the president with having "prevented, obstructed and impeded the administration of justice" by engaging in a "scheme designed to delay, impede, cover up and conceal the existence of evidence and testimony related to a Federal civil rights action brought against him in a duly instituted judicial proceeding." As in the case of the perjury allegations, senators can't in good conscience vote for the most serious allegations of obstruction if they believe that the Lewinsky evidence wasn't material to the Jones suit.

Let's consider them in turn.

"On or about December 17, 1997, William Jefferson Clinton corruptly encouraged a witness in a Federal civil rights action brought against him to execute a sworn affidavit in that proceeding that he knew to be perjurious, false and misleading," the House alleges, and " o n or about December 17, 1997, William Jefferson Clinton corruptly encouraged a witness in a Federal civil rights action brought against him to give perjurious, false and misleading testimony if and when called to testify personally in that proceeding." At least eight times before the grand jury, Clinton insisted that he and Lewinsky believed that she could execute a truthful affidavit that would establish their affair wasn't relevant to the Jones case. During his presentation last week, however, House Manager Bill McCollom noted convincingly that Lewinsky denied in her affidavit that she had ever seen the president outside of official events. This was obviously a lie.

But even if the managers could establish that Clinton asked her to include this false detail--in the face of Monica's repeated statements that the president never asked her to lie--both Clinton and Lewinsky obviously knew it was a lie, and therefore it couldn't violate the witness tampering law. Courts have made clear that, when two people freely agree to tell a story that both know to be false, neither can be guilty of witness tampering, as defined in section 1512 of the obstruction law. By contrast, to prove that the lie obstructed the "due administration of justice," under section 1503 of the obstruction law, the managers would have to establish that it was material in some way to the Jones case. If it wasn't material, then it wasn't perjurious, and Clinton can't have obstructed justice in the Jones case by encouraging it.

"Beginning on or about December 7, 1997, and continuing through and including January 14, 1998," the House alleges, "William Jefferson Clinton intensified and succeeded in an effort to secure job assistance to a witness in a Federal civil rights action brought against him in order to corruptly prevent the truthful testimony of that witness in that proceeding at a time when the truthful testimony of that witness would have been harmful to him." From the beginning, the allegation that Clinton got Lewinsky a job in order to buy her silence has been hard to prove because it's based on an inherently implausible theory of the case. In a passage that Starr omitted from his referral, Lewinsky told FBI investigators that the main reason she looked for a job in New York was because Linda Tripp told her that a fellow worker, " Kate at NSC," said that Lewinsky would never get a job in the White House that would allow her to stay near the president. This explanation of the job search is highly convincing: Lewinsky made clear throughout her testimony that she wanted desperately to stay at the White House and only agreed to look for work elsewhere when it became clear that her position was untenable.

But, if Lewinsky's account of her job search is accurate, then her truthful testimony couldn't have harmed the president in the Paula Jones suit, and the president can't have obstructed justice by discouraging her from testifying, even indirectly, by helping her find another job. Remember that the Jones lawyers' justification for asking questions about Lewinsky in the first place hinged on their suggestion that Clinton punished employees who rebuffed his advances and rewarded those who succumbed to his advances. But, by her own account, Lewinsky wasn't rewarded with a job for having an affair with Clinton: she was forced to leave the job--and man--she loved and to look, reluctantly, for work in the private sector. So, even if Clinton did tell Jordan to get Lewinsky a job at Revlon--a claim that all three of them strenuously deny--a consensual affair that culminated in Lewinsky leaving the government under duress seems too remote from anything that Paula Jones experienced to be material to the Jones case, and Clinton couldn't have been harmed in the Jones case by its disclosure.

"On or about January 18 and January 20-21, 1998," the House alleges, " William Jefferson Clinton related a false and misleading account of events relevant to a Federal civil rights action brought against him to a potential witness in that proceeding, in order to corruptly influence the testimony of that witness." The allegation here is that Clinton obstructed justice when he summoned his secretary, Betty Currie, after the Jones deposition and posed to her a series of leading questions, such as, "I was never alone with Monica Lewinsky, right?" "You were always here when she was here, right?" and "You could see and hear everything, right?" In his overview of the case, House Manager James Sensenbrenner quoted a definition of witness tampering from a 1986 appellate court decision, U.S. v. Rodolitz: "The most obvious example of a Section 1512 violation may be the situation where a defendant tells a potential witness a false story as if the story were true, intending that the witness believe the story and testify to it before the grand jury." Sensenbrenner added: "If the president's actions do not fit this example, I am at a loss to know what actions do."

In fact, the president's actions don't fit this example. The Rodolitz case makes clear that telling someone else a story that both people know to be false can't be considered witness tampering. If Clinton's statements to Currie were false, both of them knew they were false. If they were misleading but technically true, both of them knew this as well. In either case, Clinton can't be accused of obstructing justice by lying to Currie, even if he could have imagined that she would ever be summoned as a witness by the Jones lawyers--itself an implausible assumption if you assume, as Clinton did, that the Lewinsky affair was immaterial to the Jones case.

"On or about January 21, 23 and 26, 1998," the House alleges, "William Jefferson Clinton made false and misleading statements to potential witnesses in a Federal grand jury proceeding in order to corruptly influence the testimony of those witnesses. The false and misleading statements made by William Jefferson Clinton were repeated by the witnesses to the grand jury, causing the grand jury to receive false and misleading information." In his widely praised but oddly conspiratorial presentation, Asa Hutchinson spelled out the prosecution's theory of this allegation. He noted that Clinton told Sidney Blumenthal that Monica "made a sexual demand on me" and that Monica thought that, by having an affair with him, she wouldn't be known as "'the stalker' anymore." By calling Blumenthal to the Senate, Hutchinson suggested, the prosecution would make clear that Clinton's lies to Blumenthal about his relationship with Lewinsky were a form of witness tampering, because he intended for Blumenthal to repeat them to the grand jury and to the press.

This is factually and legally implausible. If Blumenthal is called to the Senate, he will testify that, when Clinton lied to him, the president's overriding purpose wasn't to mislead the grand jury but to avoid detection by his wife, to whom Blumenthal is famously close. Blumenthal himself wasn't a witness to any of the events in the Jones suit, and it's absurd to claim that the president intended to influence Starr's grand jury when he merely repeated to his aides the same denials that he made to the country at large. Indeed, under the House's theory, the subject of a grand jury investigation would have an obligation to confess his guilt to anyone who asked to avoid being charged with obstruction of justice, because anyone the suspect spoke with might conceivably be subpoenaed by his prosecutor. This attempt to short- circuit the right against self-incrimination was precisely what Congress tried to avoid when it passed the first obstruction of justice law in 1831. And, in any event, if the Lewinsky affair wasn't material to the Jones case, then the grand jury couldn't have been misled by inaccurate hearsay about it repeated by presidential aides who weren't firsthand witnesses.

Finally, the House alleges, "On or about December 28, 1997, William Jefferson Clinton corruptly engaged in, encouraged or supported a scheme to conceal evidence that had been subpoenaed in a Federal civil rights action brought against him." In his presentation, House Manager Cannon pointed to a case decided last April, U.S. v. Lundwall, to justify the claim that the obstruction of justice statute can be violated by attempts to withhold evidence that has been subpoenaed in civil proceedings. But, in fact, the case shows how rarely the obstruction of justice statute is applied in this context.

The Lundwall case grew out of the controversy ignited by a report in The New York Times that several Texaco executives, including Robert Ulrich and Richard Lundwall, had been caught on tape using racial epithets. Texaco paid $176 million to settle the civil discrimination lawsuit that had been brought by African American employees before the tapes emerged, and punished Ulrich and Lundwall by reducing their retirement benefits. Although it turned out the accounts of racial epithets had been greatly exaggerated, the public outcry continued, prompting Mary Jo White, a U.S. attorney in New York, to indict the two men on obstruction of justice charges. Ulrich and Lundwall, she alleged, had violated the law by placing certain documents related to the case in a folder marked "withheld from legal."

At their trial, Lundwall and Ulrich argued successfully that the plaintiffs had never subpoenaed the disputed documents, and neither defendant had any reason to believe they were material to the case. The two men portrayed themselves as innocent but legally unsophisticated employees who had tried in good faith to separate relevant documents from those they thought were irrelevant. Their lawyers pointed out, furthermore, that this was the first time in history that the federal obstruction of justice law had been invoked in a civil case in which one side withheld peripheral evidence that the other side hadn't even sought. Last May, a federal jury acquitted Lundwall and Ulrich on all counts. The jurors gave the defendants the benefit of the doubt, understanding intuitively that the withholding of evidence of dubious relevance to a civil lawsuit hardly amounts to the kind of obstruction of justice the law was designed to prohibit. And the senators, as triers of fact and law, must similarly focus on the materiality of the Lewinsky evidence before reaching a final verdict. In 1995, the Supreme Court unanimously reversed a defendant's conviction for making false statements on the grounds that the trial judge had denied his right to have a jury decide the materiality of his lies. In a concurring opinion, Chief Justice Rehnquist wrote, "I agree that 'the trial judge's refusal to allow the jury to pass on the "materiality" of the false statements infringed' his 'right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he was charged.'" If the Senate votes on the articles of impeachment without first conducting a debate about the materiality of the Lewinsky evidence, it will deny Bill Clinton's basic constitutional right to due process of law.

The House managers have criticized the president's lawyers for their legalistic hairsplitting in focusing on the technical definitions of perjury and obstruction of justice. The president lied, they argue. Isn't that enough to impeach him? But the entire theory of the impeachment of Bill Clinton-- clearly set out in the first article of impeachment--is that the president violated "his constitutional duty to take care that the laws be faithfully executed." If the president's conduct did not, in fact, violate the law, then, according the standards the House agreed on, he can't be impeached.

I've argued that, despite the claims of the president's lawyers, no conscientious senator can vote to convict Clinton on either article of impeachment without first deciding that the Lewinsky affair was legally material to the Jones case. But was it, in fact, material? Those senators who view Jones as a heroic but ordinary American citizen, determined to vindicate her civil rights, might take the position that she was perfectly justified in asking the president to name all the government employees with whom he had sexual relations during the past two decades. Those senators who view the Jones suit as a transparent example of political blackmail--based on the preposterous and illiberal claim that a single advance, without tangible job consequences, is a form of gender discrimination--might conclude that such a meritless suit could not have been illuminated in any way by evidence of the president's consensual affair with an intern who was transferred out of the White House but chose not to complain about it. Given the confused and uncertain state of harassment law, either position, unfortunately, is legally plausible. But, if the Senate convicts the president, it will have decided that the Lewinsky evidence is, in fact, material to the Jones suit. This indelible precedent will encourage every sexual harassment plaintiff in the future to expose the most intimate activities of every defendant, no matter how frivolous the underlying claim. It would be hard to reconcile this reckless expansion of harassment law with what Representative Steve Largent of Oklahoma, in the Republican response to the State of the Union address, called the core principles of the Republican Party: "individual liberty, free enterprise, and limited government."

Jeffrey Rosen is the former legal affairs editor at The New Republic and president and CEO of the National Constitution Center.