Opening Argument – Why Clinton Will Miss Paula Jones

National Journal

In the short run, President Clinton won big–in both legal and public relations terms–when Judge Susan Webber Wright threw out the Paula Jones sexual harassment lawsuit.

But in the long run, Wright’s ruling will actually hurt Clinton, and help Kenneth Starr. Here’s why: The Jones lawsuit had already become a sideshow–a useful distraction, in the minds of those seeking to divert attention from Clinton’s own alleged lies and cover-up. The main act is Starr’s investigation of those alleged crimes. And that will now be the entire focus of public attention.

The argument about Paula Jones–and the secondary question of whether she is entitled to monetary damages as a matter of civil law–is over, unless she wins on appeal a year or two from now. The argument over whether Bill Clinton has corrupted his office by orchestrating a cover-up is now under way in earnest.

Sometime in May, Starr will (it seems likely) submit to the House of Representatives a copiously documented public report detailing grand-jury testimony and other evidence that implicates Clinton and his aides in as many as several dozen alleged perjuries and in efforts to encourage perjury or conceal evidence. Starr will state that the evidence is serious enough to require him to refer to the House anything that ”may constitute grounds for an impeachment,” in the words of the independent counsel statute.

Starr will argue that Judge Wright’s ruling has little or no legal relevance either to Clinton’s guilt or innocence as a matter of criminal law or to possible impeachment. And Starr will be right.

This is not to say that Wright’s ruling has no political relevance. Impeachment is inherently a political process, and it is driven far more by public opinion than by technicalities.

That’s why the conventional wisdom is that in any PR war with Starr, or with Republicans in Congress, Clinton will always win.

Don’t bet on him to win this time. Which is the same as to say, don’t bet on the conventional wisdom again.

The conventional wisdom was wrong when it said that Clinton would soon be sunk by the Monica Lewinsky torpedo that exploded on Jan. 21. It was wrong again when it said he would be sunk by Kathleen Willey’s riveting interview on 60 Minutes.

Now the conventional wisdom is that it’s ”politically inconceivable that Congress will consider impeachment,” as John M. Broder wrote in The New York Times. If Clinton were the Titanic, the conventional-wisdom crowd snickers, the iceberg would sink.

Wrong again.

The iceberg that is about to hit Clinton is personified by Kenneth Starr. He is everything that Clinton is not: honest, principled, and utterly inept at spin. But the facts in Starr’s report will pop the rivets in Clinton’s fragile ship. And as the ship starts sinking, Democrats in Congress will run for the lifeboats.

Public attention will be focused on evidence that Clinton has lied to the nation, lied under oath, sought to sway others to lie or shade their stories, and dragged the presidency through the muck. The spotlight on Clinton’s abuse of his office for personal ends will be so merciless that he and his spinners will wish they still had Paula Jones to kick around.

What better ploy to divert attention from Clinton’s character and conduct than to pound on Paula Jones’s unappealing persona, on her right-wing camp followers and on the legal arcana of her case? Without Jones to pound on, and with the Starr-as- right-wing-conspirator fraud having run its course, Clinton’s only hope of avoiding disgrace will be for a collective judgment by the American people that perjury and obstruction of justice by the President are OK–at least if the covered-up matter has something to do with sex.

Clinton’s best hope of avoiding impeachment will be for a public judgment that the President–whom the Constitution mandates to ”take care that the laws be faithfully executed”– is in some cases above the law, or perhaps that a few dozen low crimes don’t add up to a ”high crime.”

Clinton may well limp to the end of his term without being removed or forced to resign. But Democrats with integrity will turn their backs on him. And his legacy will be to Nixon’s as farce is to tragedy.

That may be small consolation to Paula Jones, who may never get to test the strength of her evidence in court or win a dime in damages.

But the central public importance of Jones’s allegations was never whether she was entitled to monetary damages. It was, rather, whether Bill Clinton was the kind of man who would do what Jones plausibly says he did. Now the question is whether Clinton has committed crimes and misused government resources– perhaps while inspiring others in his camp to intimidate key witnesses–in order to cover up the truth about Clinton’s alleged flashing of Jones, and his alleged groping of Kathleen Willey, and other shameful personal conduct.

Judge Wright’s judiciously crafted opinion strikes me as plausible but ultimately unpersuasive as a matter of law. (I originally found more convincing the same Judge Wright’s 1994 opinion holding Clinton immune from any civil trial while in office; her view, and mine, of that issue was convincingly rejected last May by a unanimous Supreme Court.) This week’s ruling will, in any event, almost surely push any trial of the Paula Jones lawsuit past the end of Clinton’s presidency, even if Jones’s lawyers once again get Wright reversed on appeal.

But the publicly important issues are the ones that Judge Wright did not decide: She did not find that Clinton had not engaged in the ”odious” conduct alleged by Jones. She did not find that Clinton had not tampered with witnesses or otherwise obstructed justice.

And the judge did not find that Clinton had not perjured himself about Jones. Or about Monica Lewinsky. Or about Gennifer Flowers. Or about Dolly Kyle Browning. Or about Betty Currie. Or about the four former Clinton bodyguards (and self-described procurers of women) who contradict Clinton’s testimony, two of whom have sworn that a Clinton political appointee warned them to keep quiet or risk unspecified consequences to themselves and their families. Or, for that matter, about former Clinton cronies such as the convicted crooks James McDougal, David Hale and Webster Hubbell.

To be sure, not one of the key witnesses against Clinton appears to be a profile in integrity. But 10 or so not-very- credible witnesses–strongly corroborated by other evidence, in some cases–add up. To illustrate: If we posit at 50-50 the probability that any one of the top 10 witnesses against Clinton is lying, then the mathematical probability that all 10 are lying–and thus that Clinton has told the whole truth in his own sworn testimony–comes to one chance in 1,024.

Nor did Judge Wright’s dismissal of the Paula Jones lawsuit erase all of the obstructions of justice, all of the perjuries, and all of the subornations that may have been committed to thwart that lawsuit.

The nullification of these allegations is precisely what is being claimed by Clinton lawyers, White House propagandists, and some law professors and journalists. But this is a public relations argument based on a false legal premise.

That false premise is that any lies under oath in the Jones lawsuit–by Clinton, Lewinsky or others–no longer violate the federal perjury statute. The statute punishes only sworn lies about ”material matters,” which courts have defined to mean lies having ”a natural tendency” to affect the decisions of a judge or jury. Now that Judge Wright has dismissed the Jones lawsuit without regard to whether Clinton or Jones was lying, Clinton’s spinners argue, any lies by Clinton or others that were designed to influence the Jones lawsuit could not have been material and thus could not have been perjury, because they could not have had the designed effect.

As a matter of law, this is a lame argument, if not a frivolous one.

For starters, ”the legal threshold for materiality is extremely low,” to borrow from a Feb. 11 statement by Attorney General Janet Reno. And while the case law is somewhat vague, the prevailing view at the Clinton Justice Department is that a sworn lie in a civil lawsuit can lead to a perjury conviction even if the lawsuit ends up being dismissed.

An even bigger problem for the ”materiality” spin is that the charges being considered by Starr’s prosecutors against both Clinton (in the planned impeachment referral) and Lewinsky (in a possible criminal prosecution) center on a broad conspiracy to obstruct justice. And under the obstruction statutes–one of which punishes by up to 10 years in prison anyone who seeks ”corruptly” to ”influence, delay, or prevent the testimony of any person”–there is no requirement that materiality be proven at all.

The Clinton spinners’ celebration of the Jones decision was designed for public consumption. They know that the real dangers lie ahead.