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It  depends  on  what  the  definition  of  "prepared"  is
Online Journal

James Higdon

July 14, 2000

Frankly, I've had enough.

I've watched the situation go by for several years as an out-of-control Republican Congress, and an Office of the Independent Council dedicated to bringing down one of the most, if not the most effective, presidents in my lifetime, attempted everything from distortions of fact to distortions of law to discredit William Jefferson Clinton's superb eight years in office.

After finding nothing in careless allegations and trumped charges surrounding Whitewater, Vince Foster, Filegate, Travelgate, and the most scurrilous defamation that the likes of Jerry Falwell could invent, the zealots of extremism finally pinned their hopes to the refuge of perjury, and attempted a failed coup by abusing the Constitution of the United States of America.

After failing this coup for lack of votes (clever people, those Founding Fathers) they persist to this day. By suggesting that President Clinton may be tried for perjury after leaving office, and constantly repeating the phrase, "it depends on what the definition of 'is' is," or the word, "perjury," every time a Democrat walks into view, they believe that eventually the American people will buy the swill they're spewing.

Because of the mainstream pundits' refusal to work for a living by so much as opening the Federal Code or a law book, instead taking information from the faxes sent by the GOP, the tactic seems to be having some success. Well, it's time that someone blew the lid off the old perjury myth. No one was ever going to prosecute Bill Clinton for perjury. They never were, and they never will. Anyone who says anything different is selling something.

On January 10, 1973, the Supreme Court of the United States, through the eloquence of Chief Justice Burger delivered a unanimous decision (9-0) on a remarkably similar set of facts to the Clinton/Jones case involving a bankruptcy. Of course, assuming that any criminal charges filed against President Clinton, would be argued in Washington, DC, or Virginia, any conviction would first be appealed in either the DC Circuit or the 4th Circuit.

Well, guess what! In 1995, a unanimous three-judge panel in the 4th Circuit Court of Appeals (penned by Senior Circuit Judge Butzner), cited Burger's reasoning involving events that were almost identical to the Clinton/Jones situation. And in a DC Case in 1996, the Burger Court decision was again cited on similar facts.

In all three of these cases, the defendants' perjury convictions were overturned. The first of these cases, Bronston v. United States, 409 U.S. 352 (1973), is textbook law. This case and its progeny are frequently cited in texts about evidence and procedure. It should be well known to the likes of Kenneth Starr, and should be standard reading to any prosecutor conducting a grand jury investigation. It is certainly well known to many in congress by way of their common legal backgrounds.

Particularly to the likes of Tom Campbell (R. California), a former law professor at Stanford University. You see, the courts do not much care for "perjury traps." The Burger Court, quoting a "leading 19th century commentator" on common law (the law handed down from our English forefathers) reported that the law "throws a fence round a person accused of perjury," because "the obligation of protecting witnesses from oppression, or annoyance, by charges, or threats of charges, of having borne false testimony, is far paramount to that of giving even perjury its deserts."

In other words, the concept of getting a witness to say what a zealous prosecutor wants him/her to say by threatening to prosecute on every conceivable charge is as old as the common law itself. Having witnesses fear to make any unintentional misstatement is not a good engine for truth.

"Prevention" of perjury is therefore "better than cure." "The burden is on the questioner to pin the witness down to the specific object of the questioner's inquiry." (United States v. Wall, 371 F.2d 398 (CA61967)) Then, and only then, can the intent of the witness to mislead be determined beyond reasonable doubt.

In order for President Clinton to be convicted of perjury, his questioners would have to have asked, "What is the definition of 'is?'" "Precise questioning is the imperative as a predicate for the offense of perjury." It is the questioning lawyer's duty "to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination."

As Burger concluded, "It may well be that [the president's] answers were not guileless but were shrewdly calculated to evade. Nevertheless…any special problems arising from the literally true but unresponsive answer are to be remedied through the 'questioner's acuity' and not by a federal perjury prosecution."

In the 4th Circuit case, the defendant took advantage of the multiple definitions for the word "prepare" in providing misleading testimony, and the facts could not be more on point. The 4th Circuit did their duty in echoing the Burger Court by saying, "[a] perjury conviction cannot be based upon evasive answers or even upon misleading answers so long as they are literally true." (United States v. Hairston, 46 F.3d 361 (4th Cir. 1995))

Finally, the D.C. Court quoted Mark Twain, "'[o]ften, the surest way to convey misinformation is to tell the strict truth,' a statement that is literally true cannot support a perjury conviction." (United States v. Dean, 55 F.3d 640 (D.C. Cir. 1996))

Any skilled and learned litigator must be cognizant of these rulings, as well as many others. It is my belief that President Clinton's questioners were so informed. I believe, and it has been fairly well established, that they knew the truthful answers to their questions before they asked them. They had already been in contact with Linda Tripp, and there is evidence to suggest that there was some collusion with the OIC.

Instead of pressing the issue home, as was their duty, they allowed the misleading answers to stand. They knew that the President of the United States could not be tried in a court of law, where such a prosecution would be quickly thrown out, or a conviction would be overturned on appeal. Instead, the president must be tried in the Senate where an impeachable offense is anything that can garner a two-thirds majority vote. With the pending mid-term elections, perhaps the Republicans could gain a two-thirds majority in the Senate if the public was sufficiently outraged by charges of presidential perjury.

Perhaps they hoped that they could so embarrass President Clinton to the point of resignation. Perhaps their friends in the Senate and House could convince enough Democratic crossovers by their backroom displays of unproven, unverifiable, and scandalous accusations boxed neatly by Ken Starr's OIC. All of these alternatives were discussed widely in news reports and talk shows during the impeachment process.

If Paula Jones' attorneys were more concerned about winning a case for their client than removing the President of the United States (and such was their sacred duty as attorneys at law), they would have exercised at least a minimal effort to elicit the truth at the time that President Clinton was questioned and deposed. In attempting to garner public sympathy, and to quell charges of an attempted coup, Republicans assured us that there was no attempt to overthrow the lawfully elected government.

They assured us that even if the president were convicted, or resigned, Al Gore would carry on the mantle of government under the Constitution. But the process was underway, even then, to conduct the same kind of misinformation campaign against the vice president by the distortion of fact, and the misapplication of law. From there, it is a perilously small step to the complete subversion of the will of the people, and installing the Republican Speaker of the House as the world's most powerful leader. We the People have been put on fair notice that as long as there remains a Republican majority in Congress, and a Democratic president in the White House, the law and the Constitution of the United States are barriers that will be willingly torn down on the path to a bloodless coup.


In November we return to the polling booth. Despite eight years of national peace, prosperity, and the end of deficit spending, the Republicans are telling us that Clinton was never qualified to lead. They claim its obviousness in the exposed affair with a young woman who once served under him as an intern. In establishing that misdeed, they spent over a hundred million dollars on investigations (public and private), and "independent" counsels.

They delayed judicial appointments, shut down the government, and turned our national discourse into a worldwide joke. Are the Republicans prepared to lead in November? I guess that depends on what the definition of "prepared" is.