Checking the rap sheets

Neal Boortz, on his nationally syndicated radio talk show, had the following exchange with a caller on July 5th:

BOORTZ: But in the case of Scooter Libby, Scooter Libby and Bill Clinton got sentenced and convicted for exactly the same crime. Can you -- now tell me, why is there so much outrage on the left that Scooter Libby isn't going to have to serve a 30-month jail term, and not a bit of outrage on the left that Bill Clinton didn't even get a 30-month jail term.

CALLER: I don't remember Bill Clinton actually being convicted for perjury.

BOORTZ: I'm sorry, he was.

CALLER: He was exonerated by a Republican Senate if I remember correctly.

BOORTZ: No sir, that's an impeachment. We're talking about a criminal trial, sir. The verdict was guilty. He was disbarred as a result of that verdict. He had his privileges to practice law before the Supreme Court of the United States revoked because of that verdict.

CALLER: Well, the bottom line --

BOORTZ: But you know, it's a crime that Scooter Libby isn't going to jail but quite OK that Bill Clinton didn't.

[...]

Scooter Libby was convicted of the exact same thing that Bill Clinton was convicted of. Bill Clinton got no jail time. That was fine. Scooter Libby now gets no jail time. That's not fine. Bill Clinton, liberal. Scooter Libby, presumed right wing.

Media Matters (among others) quickly challenged these patently false statements and Keith Olbermann gave Boortz his nightly "Worst Person in the World" award.

Still, there's still a widespread impression, fomented in certain right-wing quarters, that Clinton committed a perjury crime for which he was never held accountable. The implication is that partisan politics, including the inability of Senate Republicans to muster the 2/3 majority needed to convict Clinton in 1999, resulted in a legal travesty. Democrats who criticize Bush's commutation of Scooter Libby's 30-month jail sentence are therefore attacked, by Boortz and his colleagues, for the vilest form of hypocrisy.

Did Clinton, in fact, commit the crime of perjury?

The Oregon perjury statute is contains typical language describing the offense:

A person commits the crime of perjury if the person makes a false sworn statement in regard to a material issue, knowing it to be false. (ORS 162.065; my emphasis.)

A working definition of "material" evidence is:

...relevant and significant in a lawsuit, as in 'material evidence' as distinguished from totally irrelevant or of such minor importance that the court will either ignore it, rule it immaterial if objected to, or not allow lengthy testimony upon such a matter.

So a lie under oath is not "perjury" unless it relates to a "material issue" rather than a collateral matter, like Clinton's affair with Lewinsky.

Clinton's misrepresentations (i.e., lies) about his affair with Monica Lewinsky were certainly under oath, since they were made at a sworn deposition, but they weren't "material" in the context of the Paula Jones lawsuit. (Ironically, the federal rules of evidence wouldn't have allowed any questions about collateral matters like the Lewinsky affair prior to 1994, when Bill Clinton signed a revision of those rules into law. But his consensual sexual relationship with Lewinsky had little or no relevance to Jones' claims of sexual harassment that bordered on assault.)

Any reasonable jury, presented with all the material evidence in a perjury prosecution of Clinton, would enter a "not guilty" verdict in short order. The Lewinsky affair was so tangential and unrelated that the trial judge wouldn't have allowed Jones' lawyers to even inquire about it in front of a jury. The rules for asking questions at trial are far more strict than those that apply to out-of-court depositions.

From a strictly legal point of view, the perjury charge at Clinton's impeachment trial was a no-brainer (1). A politicized Senate still mustered 45 votes to convict (and 55 to acquit)--well short of the 67 needed to remove a president.

Clinton's lies were breathtakingly stupid and inexcusable, but they weren't a crime. He was trying to prevent public embarrassment to himself and his family rather than (like Libby) cover up a criminal conspiracy that amounted to treason. Clinton still had to pay a $90,000 fine for civil contempt of court for his misleading testimony, and his license to practice law in Arkansas was suspended for five years (1). The judge wrote that:

Simply put, the president's deposition testimony regarding whether he had ever been alone with Ms. (Monica) Lewinsky was intentionally false, and his statements regarding whether he had ever engaged in sexual relations with Ms. Lewinsky likewise were intentionally false . . . .

The same federal judge threw Paula Jones' civil case out of court before trial, but Clinton paid her an extravagant settlement just to make her go away (and to avoid the risks inherent in any appeal). He was never indicted for perjury or any other offense by Ken Starr, the zealous right-wing special prosecutor who investigated the Lewinsky matter, or anyone else.

The protracted obsession of the political and media classes with Bill Clinton's sex life, and his crude attempts to conceal it, seems utterly trivial after four disastrous years of war in Iraq. Yet the war crimes committed by Bush/Cheney aren't even on the radar screen of the House Judiciary Committee or virtually anyone else in official Washington, as noted on these pages, last week (3).

Those who denounce hypocrisy in Washington have been looking in the wrong places.

Meanwhile, Dubya is the only U.S. president who has ever been convicted of a crime. Not to be outdone, Dick Cheney was also convicted of two similar criminal offenses in Wyoming during his wild youth (4).

NOTES

(1) Clinton was also charged with obstruction of justice based on the underlying perjury charge.

(2) Due to the Arkansas suspension, Clinton was also suspended automatically from practicing in the U.S. Supreme Court, where he had never argued a case.

(3) Senator Gordon Smith (R-Oregon) stated last December that Bush's policy in Iraq "may even be criminal," an accusation that would provide a legal basis for impeachment. Yet he refused to vote in opposition to the surge a few weeks later.

(4) A notion that quickly leads to total cognitive disconnect. At least one other VP accumulated a criminal record, but not before taking office. Spiro Agnew, Nixon's VP, was convicted of tax evasion and money laundering after he resigned from office in disgrace following a bribery investigation.

PHOTO: Impeachment trial of Bill Clinton in the Senate, 1999 (Wikipedia)