To Giordano's credit, he said that if these indictments are true, then not only is it serious, but devastating for Libby and the White House. His main message was consistency. He said perjury was serious when Clinton was accused of lying about sex. He said perjury was serious when Martha Stewart was accused of lying about her stock sale. And he will not be a hypocrite now and say that the indictments against Libby are not serious. His right wing callers went nuts. But it was refreshing to hear what is normally a knuckledragger speak the truth.
I think, for once, Mr. Giordano makes a very good point and I agree wholeheartedly with him. Perjury is a serious crime. As a lawyer, truth and facts are supposed to be the basis upon which our civil courts and criminal justice system are based. When one lies under oath in those realms, one is not only spitting in the face of those seeking truth, but actively obsecuring such truth.
My Republican batshit wingnut friend emailed me today to say that he thought it was funny how all the Democrats think perjury is now a serious crime. His implication is that we did not think it was a serious crime during the Clinton-Lewinsky Affair.
And I think he is right. How many times has the phrase "Clinton only lied about sex and blowjobs while Bush has lied about the war" been repeated on Daily Kos?
Be honest. We say it all the time. I even say it.
But we are wrong. Lying and lies are what are destorying our country. At dinner, I pulled out Al Franken's 'Lying Liars' for something to read. The myriad examples of Republican lies during the Bush-Cheney years are contained within. These lies are destroying our country.
But we Democrats and Liberals cannot denounce lying and lies if we are not indeed consistent and uniform. We cannot appear political. Perjury cannot be important to us now, but then say "who doesn't lie about sex?"
So I hereby condemn President Clinton, if the Republican charges that he lied under oath were proved and true. As a lawyer, and as the President, Clinton should have known better.
Indeed, Clinton was indicted for perjury in essence. He was impeached for obstruction of justice and perjury. He then faced trial on those charges in the Senate. He was acquited in that Senate, with none of the charges passed by the House receiving a majority of the votes of Senators.
We Democrats must be consistent. Yes, perjury is serious. It was serious when Clinton was accused. It is serious now. But we can also say Clinton did not committ perjury, with a straight face.
How?
Perjury occurs when a person takes an oath to tell the truth and then says something he knows to be false. The mere existence of error in someone's testimony is not enough to prove perjury. The law requires either another witness or some other evidence that supports the accusation of lying under oath. Furthermore, not all lying under oath is perjury. The lie must be material - that is, important or relevant to the case. A murder suspect who falsely testifies that he ate cereal in jail that morning cannot be prosecuted for perjury over that irrelevant lie.
To prosecute a false statement, the government needs to prove somehow that the witness intended to lie, rather than he was mistaken or confused over the facts. To eliminate ambiguity, confusion and opportunities for lying, lawyers often reject common-sense definitions in favor of legal definitions, which are more carefully defined. A witness who answers a legal definition accurately, in spite of what common sense says, is not committing perjury. The only requirement for a defendant is to answer questions accurately; he is not obligated to help the prosecution bring himself down, and has a constitutional right to fight vigorously in his defense. In Clinton's case, no accusation of perjury survives these observations.
It is also important to clarifying what "lying" is, as opposed to "evading," "misleading," or "incomplete answers." Evasive, misleading and incomplete answers are all technically true. If I am asked to describe the color of white, and I answer that it is the color of apples, I am lying.
If I answer that it is 10 pm, I am evading.
If I answer that it is a reflection of all colors, I am misleading, but not lying as this answer is scientifically true.
If I answer that it is the color of mice, my answer is incomplete as not all mice are white.
The law requires witnesses only to give technically true answers to questions under oath. The Supreme Court has ruled that a wily defendent who gives evasive answers is not guilty of perjury. Furthermore, the 5th Amendment guarantees witnesses the right not to incriminate themselves. They are not obligated to volunteer more information than the questioner asks for, or to help the prosecution prove its case against them, or to offer unsolicited clarifications to ambiguous questions. Defendants have a constitutional right to fight vigorously for their defense; their only requirement is to answer the question accurately. It is up to prosecutors to fill in any gaps or dispel any confusion by asking follow-up questions.
In other words, our justice system is based on the adversarial process, in which it is up to prosecutors to prove their case, and defendants to prove theirs (namely, that the prosecution hasn't proven its case). Defendants are not obligated to help prosecutors, and prosecutors are not obligated to help defendants. So if a defendant resorts to evasive, misleading or incomplete answers, that is his right. Prosecutors must overcome any such attempts by asking follow-up questions.
Some might argue, "But the oath says `to tell the whole truth.' An incomplete answer is not the whole truth." True, but no answer is the whole truth. You can describe a hundred things about even the simplest event, like putting down a book. What time of day did you put the book down? What was the book's title? Where did you lay the book? Was it upside down? Why did you do so? How many pages had you finished? And so on, infinitely. Obviously, you cannot be expected to cram an infinite number of details into one answer. That is what follow-up questions are for.
Thus, there are some problems with saying that Clinton committed perjury.
First, Starr never provided convincing evidence that it was Clinton's intention to lie, rather than he was mistaken, confused, or honestly believed his interpretation of the court's definitions.
Second, many of the alleged perjury charges were immaterial (irrelevant) to the case, and cannot be prosecuted.
Third, many of Clinton's answers were technically true.
Fourth, the Republicans have taken the odd position that where Clinton and Lewinsky's testimony differ, it must be Clinton who is lying.
Fifth, many accuse Clinton of lying with respect to common sense definitions of the word "sexual relations." Many people (mostly Republicans) are outraged that Clinton does not consider oral sex to be sex. Obviously, people have a common-sense definition of sex. As one Clinton critic wrote: "Sex is sex is sex is sex. I know sex when I see it."
But although everyone has a "common-sense" definition of sex, few of these definitions agree. My favorite example is the definition of 'hooking up.' To me, hooking up means sex. To others, 'hooking up' means fondling, kissing and other kinds of 'gettin it on.' So, in my mind, if my friend says to me that he hooked up with this hot chick, and then I find out he only kissed her on the dance floor, I could think that he was lying ot me. But I would be wrong.
The ambiguity of common-sense definitions is what causes lawyers to agree to legal definitions. Legal definitions clearly state what a behavior is and is not. Far from obfuscating and confusing the issue, legal definitions are like dictionaries that clarify meaning and draw lines between concepts. They allow a person to know exactly what he's talking about. And they not only protect defendants from accidental perjury charges, but allow prosecutors to see perjury more clearly and prosecute it more successfully.
The trick, of course, is to craft good legal definitions. The lawyers for Paula Jones badly bungled their definition of sexual relations, coming up with one that did not include oral sex performed on Clinton. Clinton answered absolutely truthfully; according to that legal definition of "sexual relations," he did not have sex with Ms. Lewinsky.
Many critics have exploded with rage over this, accusing the president of perjury. Oral sex is obviously sex, they claim. However, their argument is based on the common-sense definition of sex, which both teams of lawyers explicitly rejected. They agreed to a legal definition instead. One cannot simultaneously reject a common-sense definition of sex and then use it to disparage Clinton's answer.
I could go on and on, but Clinton never did legally committ perjury. He evaded, misled, and answered incompletely. He never legally perjured himself. And that is why he was not removed from office. That is why Ken Starr and Robert Ray never indicted him for perjury.
And after this whole lecture I have just given you, you can be sure of two things.
First, Perjury is a serious crime but it is difficult to prove.
Second, Patrick Fitzgerald knows this, and he would not requested the grand jury bring charges if he could not prove it.
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