‘Accurate Lies’: The Legal World of Oxymorons

NEW YORK —  The way things are going, Bill and Hillary Rodham Clinton may join the Earl of Sandwich, Charles Boycott and Amelia Bloomer in seeing their name become part of the English language. Perhaps “clinton” will be a noun, as in “to tell a clinton,” meaning “to tell a legally accurate lie.” “To clinton” might also be a verb. “Don’t clinton me” would mean “cut the obfuscation.” Or “clinton” may be an adjective. A “clinton lie” might be defined as “a forceful lie, usually accompanied by aggressive body language.” I would not be surprised to see one of these--the language can always use another term to differentiate among falsehoods.

Meanwhile, the president’s Aug. 17 speech and grand jury testimony--and independent counsel Kenneth W. Starr’s imminent report to Congress--suggest it is time to catalog the variety of lies and identify which can or cannot be perjury.

Consider this example: Jack and Jill have been dating seriously for a year. One evening at 10, Jill phones Jack at his home. No answer. The next day she says, “I called you last night. Were you home?”

“Yes, I was,” Jack says, looking puzzled.

In fact, Jack was home until 9:30, then left to meet another love interest. Did he lie? In the context of his relationship with Jill, he did. Let’s call this the lie precise, because it is both false and literally true.

But suppose Jill says, “Did you go out with someone last night?” Thinking fast, Jack answers, “I ran down to the grocery to get some things.” Jack did, in fact, go to the grocery before his date. Did he lie? Yes, though, once again, what he said was literally true. We can call this the lie evasive. It answers a question other than the one Jill asked, in the hope she will miss the evasion and draw a false inference that he went out only for food.

Now, let’s say that not until a week later does Jill ask Jack what he did that night. “I don’t recall,” Jack replies. In fact, he recalls quite well. This is the lie forgetful. It falsely claims a lack of memory.

Finally, we have the lie outright. “Did you see anyone last night?” Jill asks. “No,” Jack answers. An outright lie.

Four lies, but because they are literally true, the first two--the lie precise and the lie evasive--cannot be perjury. The U.S. Supreme Court said so in 1973, when it held that it was the job of a lawyer asking questions to pin the witness down. These lies are not only legally acceptable, they are part of every lawyer’s arsenal.

With these distinctions in mind, let’s examine the president’s mea not so culpa Aug. 17 speech and a statement from the first lady’s spokesperson a day later. In his grand jury testimony, Clinton reportedly admitted “inappropriate intimate physical contact” with Monica S. Lewinsky, yet in his deposition in the Paula Corbin Jones sexual harassment case last January he denied “sexual relations” with Lewinsky. Then on Aug. 17, the president told the nation that his Jones case testimony was “legally accurate.” Huh?

Clinton is trying to take advantage of the legal loophole of the lie evasive. His claim seems to be that when he denied “sexual relations” with Lewinsky he was using his own narrow definition of “sexual relations,” the import of which was that she, but not he, had the relations. Thus his lie was not a lie. Ergo, it was not perjury. As we used to say in Brooklyn, “Gedoutaheah.” Not even one of Shakespeare’s fools would offer such logic.

But to the point: The 1973 case that blessed the lie evasive is Bronston vs. the United States. Testifying in a bankruptcy case, Samuel Bronston did not want to reveal he had once had a Swiss bank account. Asked if he personally ever had such an account, he replied, “The company had an account there for about six months”--which it did. The court ruled that Bronston’s “literally true but unresponsive” answer was not perjury. The questioning lawyer drew a false inference from Bronston’s answer--namely that Bronston had not had such an account--but the witness never said that.

The Bronston case won’t save Clinton. Bronston avoided perjury by avoiding the question. His evasive answer was true. The president did not avoid the question. He answered it directly, and is now torturing the language to make the false true. The effort is ludicrous. His testimony was a lie outright.

The president has another problem. At his Jones deposition, he was asked if “you and Monica Lewinsky [were] ever alone together in any room in the White House.” He responded with the lie forgetful: “I have no specific recollection.” If, as now appears, Clinton’s “intimate physical relationship” with Lewinsky spanned some 18 months, his reply is preposterous.

But if Clinton’s testimony in the Jones case contained both the lie outright and the lie forgetful, and if both lies can constitute perjury, how could the president have claimed this testimony was “legally accurate?” The answer is he cannot--but Clinton and his lawyers must have concluded that, strategically, he had no choice. Admitting perjury, whatever the political advantage, could have the following adverse legal consequences.

First, the admission could subject the president to professional discipline in Arkansas, where he is a member of the bar. Recall that New York courts disbarred Richard M. Nixon after Watergate.

Second, owning up to a lie could strengthen the Jones lawyers’ efforts to reopen her case--which is now on appeal.

Third, an admission could help demolish Clinton’s attorney-client privilege with Robert S. Bennett, his lawyer in the Jones case, because if a client uses a lawyer’s services to commit a crime or fraud (perjury is both), then even if the lawyer is unaware of it, the privilege will no longer protect their communications. Then Starr and the Jones lawyers could seek Bennett’s conversations with the president. (Other evidence may suffice to destroy the privilege with Bennett.)

The president’s use of language requires us to listen to White House statements with less trust and greater care. A day after the president’s talk to the nation, Marsha Berry, the first lady’s spokesperson, was asked: “When did the president tell [Mrs. Clinton] he had an inappropriate relationship with Monica Lewinsky?” This is an important question because the first lady spent seven months denying the charge and accusing political enemies of a conspiracy. Berry replied: “She was misled. She learned the nature of his testimony over the weekend.”

What does that answer mean? It would easily lead a casual listener to conclude that Hillary Clinton learned about her husband’s relationship with Lewinsky that very weekend. Some reporters so construed it. But that’s not what the artfully phrased statement says. It says the first lady learned “the nature of his testimony” over the weekend, not the nature of his conduct. Berry also said the first lady was “misled,” but she didn’t say when the president corrected her misimpression. In short, Berry did not answer the question while seeming to do so.

“Facts are stubborn things,” another president, John Adams, said in 1770. As the facts continue to accrete in relentless detail, their persuasive force will make Clinton’s vague and partial answers, his quibbling and literal defenses, humiliating and untenable. Telling the truth at the Jones deposition would have been embarrassing but with little legal or political fallout. Having lied, Clinton should quickly have corrected the record after the Lewinsky story broke in January. The cost would have been manageable. The president got or gave himself awful advice when he instead chose to lecture the nation that he did not have “sexual relations with that woman.”

Now, it’s too late. The battle lines are drawn. Clinton’s Aug. 17 speech signals that his strategy will be to say as little as possible, beyond maintaining his legal innocence and accepting some moral blame, in the expectation, probably correct, that Congress and the country will prefer to let history, not the impeachment process, deliver the final verdict on the man and the president.*