Perjury is a crime seldom prosecuted Legal experts differ on how to treat Clinton

January 27, 1998|By Kate Shatzkin | Kate Shatzkin,SUN STAFF

In courtrooms and conference rooms across the nation, in divorce cases and commercial litigation and antitrust disputes, Americans are swearing to tell the truth -- and proceeding to lie.

It is a crime for which they are almost never held to account.

Yet President Clinton faces the specter of a criminal perjury charge if independent prosecutor Kenneth Starr can gather enough evidence to show he had a sexual relationship with former White House intern Monica Lewinsky -- an allegation the president reportedly denied under oath in a deposition in the Paula Corbin Jones sexual harassment case.

The presidential investigation raises moral and ethical questions normally far removed from the stark language of statutes, legal experts say.

Nature of the law

When does the criminal law mean just what it says, and when is it a creature that changes with a prosecutor's resources, budget and level of cynicism?

Does the president deserve the same treatment as the average guy?

How does one prosecute a lie when truth is so constantly shifting?

"Every divorce proceeding I have ever touched has perjury -- and more than potential -- most of the time," said Eben Moglen, a professor at Columbia Law School who teaches constitutional law. "What do people lie about in life? They lie about money, and they lie about sex. When litigation is about those things, people don't tell the truth."

None of the group of experts consulted yesterday from the nation's top law schools could cite a case in which a witness who had lied under oath in a civil case had been prosecuted for perjury in criminal court.

On tapes of conversations with her friend Linda R. Tripp, Lewinsky also can be heard saying that the president and his friend Vernon Jordan encouraged her to cover up her relationship with Clinton.

Those allegations, if true, could lead to charges of suborning perjury or obstruction of justice -- also charges that, by themselves, are rarely pursued in civil cases.

Said Geoffrey C. Hazard Jr., director of the American Law Institute and a national expert on civil procedure: "Distortions that can be interpreted as falsehoods are fairly common in depositions. It's just part of the unfortunate grist of depositions. Most witnesses try to tell the truth, but if being charged with some very morally serious offense, often they don't."

In most cases, said Hazard, "prosecutors would say, 'Go away.' They would say, 'I've got to do drugs, homicides, mail fraud.' "

Punishment by jury

In a civil case, he said, a liar is usually punished by the jury deciding that case. If the panel finds that one party lacks credibility, it is likely to discount his testimony, making it likely that he or the person he's testifying for will lose in the end.

But the professors' feelings differed markedly on whether Clinton should be treated as an exception or the rule. While Starr could still pursue charges against the president if he had enough evidence, it is an open legal question whether Clinton could even be charged criminally as long as he is in office.

Paul H. Robinson, a Northwestern University law professor and a former federal prosecutor, said it's not that U.S. attorneys don't think lying in civil cases is a crime. But proving such charges is usually so difficult that prosecutors don't take the time to try, he said.

"You have to have some additional evidence besides this sort of 'he said, she said,' " said Robinson. "That's something that takes a good deal of investigation. I would think it would be unusual to have a U.S. attorney who had the actual evidence before them and did not prosecute."

A key difference from the normal perjury case lies in the fact that this one is being pursued by a special prosecutor -- the president's "own personal prosecutor," as several experts called him.

Starr must follow the same prosecution standards as Justice Department prosecutors. But he has more resources at his disposal and does not have the deluge of drug, fraud and racketeering cases that mount before the typical federal prosecutor.

Charles W. Wolfram, a Cornell Law School professor who has written a leading textbook on legal ethics, is one of many critics of the independent counsel's broad power. But given that the independent prosecutor has been given permission to pursue the investigation of Clinton's conduct involving Lewinsky, Starr is obligated to prosecute any crime he finds, Wolfram said.

Even if that crime is almost never prosecuted.

"If he was lying, it was a core lie, a central lie, and I think we ought to hold our president to higher standards than Joe and Sally Citizen," Wolfram said. "The law is that anybody can be held to a perjury standard in a civil deposition. Normally, we don't think it's worth it to pursue these people. I think it is worth it to pursue a president."

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