Perjury about Monica Lewinsky's affidavit

Shortly before the Jones deposition, Monica Lewinsky learned she was on the witness list. Hoping to avoid testifying, she filed a written affidavit, which said:

Although this is apparently a lie, there is strong evidence that Lewinsky thought it was a truthful statement. The Tripp tapes reveal her definition of sex: Keep in mind that this wasn’t a convenient redefinition of sex meant to deny an affair, especially before prosecutors. Lewinsky had already admitted her affair privately to Tripp, and was explaining her definition of sex after the fact. Lewinsky also had no idea that she was being taped; she thought she was having a private phone conversation with a friend. Arguably, she was being honest.

Lewinsky’s definition of sex actually turns out to be a common one. In a survey of 600 college students, 60 percent said they would not have "had sex" if the activity were oral-genital contact. (1)

Lewinksy may even have been hiding the full nature of her relationship with Bill Clinton. But if she truly believed that definition -- and the Tripp tapes clearly suggests she does -- then her giving an accurate affidavit is not perjury.

The affidavit has been controversial on other grounds, however. In his own deposition testimony, Clinton was asked if he encouraged her to write the affidavit. He responded:

But Lewinsky later testified that Clinton had talked to her three times about the possibility of testifying. She said Clinton "told me that it didn't necessarily mean that I would be subpoenaed, but that that was a possibility, and if I were to be subpoenaed, that I should contact Betty [Currie, his secretary] and let Betty know that I had received a subpoena." He went on to suggest she could "always say you were coming to see Betty or that you were bringing me letters." (Clinton denied making this last suggestion, leaving it a case of "he said – she said.")

Later, in his Grand Jury testimony, Clinton admitted that he did talk to her in detail about the possibility of testifying, and suggested that she file an affidavit. Critics argue that this proves Clinton lied during his deposition testimony. Why would he remember only a single "joke" about her being called to testify before the deposition, but remember lengthy discussions about producing testimony and affidavits seven months later? Clinton explained:

And that's not an implausible argument. He is, after all, the President of the United States.

But then why could he remember more later? One reason is that he could ask friends to help reconstruct events, check records, and try to remember more himself once his attention was called to a particular event. This is not a legalistic argument. In the next 15 seconds, can you remember what you did on the sixth day of last month? Chances are, probably not. But could you provide a better answer if you were given unlimited time to think about it, ask friends and check records? Of course you could.

Now, even the Starr Report does not accuse Clinton of asking her to file a false affidavit. Both Clinton and Lewinsky testified that he did not tell her to lie in the affidavit, and he even turned down the opportunity to review it before she submitted it.

But Clinton’s critics argue that if Clinton encouraged her to write an affidavit to avoid testifying, then he knew it would have to be false. After all, an affidavit admitting to oral sex would have guaranteed that she testify, not prevented it.

The White House rebuttal to the Starr Report handles this argument superbly:

Unfortunately, the affidavit has spawned yet more controversy. During the Jones deposition, when Clinton was first asked about Monica Lewinsky, his lawyer Robert Bennett objected: Now, the important thing to notice about Bennett’s objection is that it arguably goes beyond the limited definition of sex used by both the court and Ms. Lewinsky. "No sex of any kind in any manner, shape or form" arguably means they did not engage in oral sex either, which would have made the affidavit false. If this was Bennett’s mistaken idea of what Ms. Lewinsky meant, then obviously President Clinton could not be accused of perjury because of it. The president had no control over the misperceptions of his lawyer. However, because Clinton did not contradict Bennett, Starr has argued that Clinton committed perjury by allowing this false impression to persist.

In his Grand Jury testimony, Clinton admitted that he was not paying attention to the objection his lawyer was making. Republicans rebut this with the videotape of the deposition, which shows Clinton looking directly at Bennett the entire time Bennett was protesting, suggesting that this, too, was a lie. But Democrats point out that this was the first time that Clinton realized that the Jones lawyers had detailed information about his affair with Lewinsky, and that his presidency was about to be engulfed in an enormous scandal. His mind was racing, thinking of how best to handle the situation. He could have been looking at Bennett while remaining preoccupied by the crisis that had suddenly erupted. It is up to prosecutors to prove his state of mind, and, of course, they have offered no such evidence.

Starr’s accusation fails in another way. Bennett’s statement was accidentally accurate! Bennett said the affidavit stated that "there is absolutely no sex of any kind," which was literally true: by that time, the relationship had long ago ended. If he had said there "was" no sex of any kind, then that would have been false. So even if Clinton had been paying attention to Bennett, Clinton’s agreement would have been accurate. Clinton’s enemies have ridiculed his legalistic use of the word "is," but there’s no gainsaying that Clinton’s argument is accurate. Prosecutors can’t condemn the lies they wish the defendant had told.

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1. Poll conducted by Kinsey Institute for Research in Sex, Gender and Reproduction, "Would You Say You 'Had Sex' If..." (Indiana Unversity, 1991). Poll cited in American Medical Journal, January 20, 1999.