For a brief moment last week, it looked as if President Clinton was going to relieve a concerned nation of a costly investigation and looming impeachment threat by going before the grand jury, electronically at least, and telling the truth. The reassertion of counterfeit privilege claims by his White House counsel, however, suggests we were misled. Embarrassed to take shelter beneath the 5th Amendment protection against self-incrimination, the presidential strategy now appears to be to show up on Aug. 17 and assert executive privilege.
Richard Nixon did the same. It didn’t work then, and it won’t now.
Executive privilege, wrote Chief Justice Warren E. Burger in the infamous Nixon case, has constitutional root, and it is appropriately invoked to protect military secrets, law enforcement sources and the deliberations necessary to formulate or administer public policy.
Executive privilege has nothing, absolutely nothing, to do with sexual dalliances that may or may not count as “sexual relations with that woman,” and the president knows it. The courts have repeatedly told him so.
Why does the president persist so? Political leaders of both parties have already indicated an extraordinary willingness to “forgive,” to use Sen. Orrin Hatch’s (R-Utah) words.
Indeed, this forgiveness may be mandated by law. It is widely assumed that proof of a presidential lie in the Jones matter is tantamount to civil perjury and that this poses inevitable and intractable questions about whether a sitting president can be indicted, and if so, whether lying in a civil matter that is now on appeal is a “high crime or misdemeanor” sufficient for impeachment. The assumption is wrong, or at least, premature.
Perhaps if the White House counsel’s staff would set aside its ever-expanding treatise on untenable privilege claims they would discover Title 5 of the Arkansas Criminal Code. Down there in subtitle 5 of chapter 53, section 104, are the following words: “It is a defense to a prosecution for perjury that the defendant retracted his false material statement.” Does Arkansas law govern in federal court? It might since the Paula Jones case was partially premised on what lawyers call diversity of citizenship.
But even federal law which governs her sexual harassment/civil rights claim allows for recantation. Right smack in Title 18, section 1623(d), are similar words allowing a false declaration to be withdrawn if the proceeding has not yet concluded, which of course, thanks to her appeal, the Jones suit has not.
While the recantation doctrine is the minority position among American courts, it is one tailor-made for this president. Perhaps the world according to Kenneth Starr stiffly posits that truth in a judicial proceeding can only be secured by the threatening to inflict severe penalty for contrary behavior, such as fine or imprisonment for five years or both, but the courts favoring recantation note Clintonesquely that “the inducement of penalty would be destroyed if a witness could not correct a false statement except by running the risk of being indicted and convicted for perjury.” Or as Bill might say in his best third person voice of detached immunity, “mistakes were made.”
To be sure, the president might have some difficulty fitting precisely under the recantation rule. You see, most statutes, including the federal one, allow the defense only where “it has not become manifest that such falsity has been or will be exposed.” In other words, Bill would have to show that he’s fessing up for reasons other than the fact that the authorities have discovered the lie. He has to have a good faith motivation.
Now given what we all know from up-to-the minute media coverage, this is a toughie. All this talk about you-know-what splattered on a cocktail dress doesn’t help here in the least. But the president could point to some decisions that suggest it’s not what the old crabby independent counsel believes, but what he, the prez, feels in his subjective heart.
Certainly, a guy who can classify oral sex as a handshake would have a fighting chance. And if he can get the Arkansas law to apply, it has no good faith motive requirement at all. Gee, isn’t that a coincidence?
No legal strategy is risk free, but the alternative of indicting a president is filled with more questions than answers. The White House has done a good job here of convincing many that illicit sexual activity, even if lied about, is not impeachable. Here the president’s spinmeisters have history on their side. The framers made it pretty plain that impeachment relates to fitness for office. Richard Nixon might well have understated his income tax once, for example, and not been impeached for it. But don’t bet Chelsea’s tuition that both indictment and impeachment wouldn’t follow for a pattern of criminal acts.
So, William Jefferson Clinton, in all those attorney-client confabs you’re claiming privilege for, ask them to tell you about the recantation defense. And if it turns out that it’s too late to avoid a single count of civil perjury, isn’t that still preferable–for you and us–to inviting impeachment for either contemptuously refusing to answer questions put to you by a grand jury, or worse, compounding a lie?
