High Crimes and Definitions -- Rebuttals and Tripp-Smears Fail to Exonerate Clinton
by Stephanie Herman
September 13, 1998
I began reading the White House's Preliminary Memorandum, an anticipation of arguments in Starr's Referral, in a bustling restaurant as I ate lunch on Friday. Patrons dining at nearby tables were treated to several outbursts of laughter on my part as I read through the 73-page document. Forks occasionally hung in mid-air, their owners glancing my way as I audibly choked on my salad, coming across beauties like this:"The President's lawful assertion of privileges ... was in significant measure validated by the courts,"
or"During the past four and a half years, the President has cooperated extensively with this investigation."The second White House Rebuttal, or "Initial Response" to Starr's Referral, offered similarly amusing bits. "The Referral['s]... principal purpose is to damage the President," White House attorneys seem amazed to discover upon reading the full report. One wonders, though, how an Impeachment Referral containing evidence of presidential misconduct could be delivered to Congress without damaging the President.
Kendall, Ruff and the other members of Clinton's legal team opened their arguments insisting that "high crimes and misdemeanors" be narrowly interpreted as nothing more than presidential abuses against the nation. An impeachable offense was quickly limited by an attorney's pen to an "injury to the state," or as Alexander Hamilton put it, an "injury to the society," as if Clinton's alleged misconduct somehow didn't qualify. Both rebuttals deny the President committed perjury, suborned perjury, tampered with witnesses, obstructed justice, or abused his power. And his attorneys in the first Memorandum state unequivocally that impeachment should be reserved for only those presidential actions that "threatened the processes of government," swiftly determining that the sins Clinton committed against his family could not be translated into sins against the nation. "Private misconduct, or even public misconduct short of an offense against the state," reads the first Memorandum, "is not redressable by impeachment..."
These attempts to obfuscate the definition of "high" crimes might have been more successful if Ann Coulter, an attorney with the Center for Individual Rights, hadn't already laid out the constitutional parameters for impeachment in the first 22 pages of her recent book, High Crimes and Misdemeanors, The Case Against Bill Clinton. In it, Coulter explains that simple personal misconduct on the part of a president qualifies as grounds for impeachment, and she bases her argument on historical precedent.
Oddly enough, it seems the White House lawyers read Coulter's book in preparation for their 73-page rebuttal, nearly quoting verbatim Coulter's comments (on page 12 of her book) when they wrote, "To say that impeachment is fundamentally a 'political' process, however, is not to say that it is 'partisan' in nature. Indeed, the Framers warned against the spirit of partisanship in impeachment proceedings." The point is made in a transparent attempt to speak to House Republicans.
Yet, Coulter, after making the same point, drew a fairly damning conclusion: "Rather, high crimes and misdemeanors are 'political' in the sense that they 'relate chiefly to injuries done immediately to the society itself.' Since policy matters are necessarily off the table, in a sense, that leaves only 'personal misconduct," or as Edmund Randolph put it, 'wilful mistakes of the heart.'"
Clinton has agreed publicly that he made mistakes of the heart, but he can no longer blame Ken Starr, Monica Lewinsky or even Linda Tripp for whatever odd reason caused him to risk his presidency by lying about a blow job. Oh, but he'd like to, and in the White House Memorandum, Linda Tripp, in particular, is addressed with all the usual White House vitriol.
The first Memorandum lobs a series of clever paint-balls designed to smear and impugn Tripp's credibility in the form of incessant insinuating questions, the first of which addresses her motivations for going to Ken Starr in January of 1998. Unfortunately, it was a wasted effort on the part of the White House. Even if Tripp were a member of the vast right-wing conspiracy, her motives in presenting evidence to Ken Starr are irrelevant.
In two public statements, Linda Tripp has already explained her motivation, "This investigation has never been, quote, 'just about sex.' It has been about telling the truth, the truth matters." In addition to the fact that she simply values telling the truth, President George Bush's Executive Order #12731, "Principles of Ethical Conduct for Government Officers and Employees" mandated that Tripp take her information to Starr. Section 101(k) of the order reads, "Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities." According to a source familiar with the investigation, Tripp, as a federal employee, was not only familiar with this executive order, she felt bound by it and was determined to uphold it.
The first Memorandum goes on to suggest that the OIC played a role in arranging Tripp's meeting with attorneys for Paula Jones. "Did anyone from the OIC drive Ms. Tripp to this meeting?" the rebuttal evocatively asks. Apparently, however, the White House received some bad information. The meeting with Jones' lawyers took place at Tripp's home and it was incumbent upon the Jones attorneys themselves to do any driving necessary to meet with Tripp. To date, no connections between the OIC and Jones' legal team have been shown.
Inevitably and predictably, the White House addresses the issue of Tripp's tapes. Clinton defenders have been furious at even the possibility that they were obtained illegally, and they don't care if Tripp was ignorant of Maryland's law or not. In the second rebuttal, the OIC is charged with failing to provide even discussion of "contradictory or exculpatory evidence or any evidence that would cast doubt on the credibility of the testimony the OIC cites..." As far as this comment relates to the legal value of the tapes made by Linda Tripp, the White House is blatantly ignoring this passage of the Starr Referral, found at Narrative Footnote 126:Ms. Tripp produced to the OIC 27 tapes (four of which proved inaudible or blank) of her telephone conversations with Ms. Lewinsky. Ms. Tripp testified that she turned over the original recordings. She testified that she knew nothing about any duplications of the recordings, though others had access to or control over the tapes at times before they were turned over. According to a preliminary FBI examination, several of the 23 tapes containing audible conversations exhibit signs of duplication, and one tape exhibiting signs of duplication was produced by a recorder that was stopped and restarted during the recording process. These preliminary results raise questions about the reliability and authenticity of at least one recording, which in turn raise questions about the accuracy of Ms. Tripp's testimony regarding her handling of the tapes. The OIC is continuing to investigate this matter. This Referral does not quote or rely on any tapes that exhibit signs of duplication. For a fuller discussion, see Appendix, Tab I. [emphasis added]Nevertheless, the White House plods forward, pointing out that even though the federal wiretapping statute allows for conversations to be secretly taped, it prohibits doing so for the purpose of committing an unlawful act. According to 18 USC §2515, tapes made for an unlawful purpose, such as blackmail, cannot be used as evidence before a grand jury. But while the White House malevolently suggests Tripp may have had an unlawful purpose behind taping Lewinsky, it fails to suggest, much less prove, what that purpose might have been.
The scenario being ignored by the White House and uninformed Clinton defenders is that Tripp felt compelled to tape her conversations with Lewinsky because she'd been in a similar situation with Kathleen Willey. When she told what she knew about Willey's meeting with the President to Michael Isikoff of Newsweek, Bob Bennett publicly denounced her as a liar. To avoid the devastating experience of having her integrity called into question again, Tripp decided to protect further information concerning Willey in her discussions with Lewinsky, as well as to protect herself from Lewinsky's attempts to influence Tripp's testimony.
Currently, Tripp is under investigation regarding Maryland's law prohibiting the taping of conversations without both parties' consent, a crime rarely prosecuted. The Washington Post reports that her attorney, Joe Murtha, dismisses the investigation as "political retaliation." Maryland State Prosecutor Stephen Montanarelli, who denies political motivations in the Post article, is, however, a Democrat. Prosecutors in Maryland have the difficult task of proving that Linda Tripp knew it was illegal in Maryland to secretly tape conversations -- difficult, because the Post also reports that Lucianne Goldberg is in possession of an audio tape on which Goldberg is heard advising Tripp that it's not illegal to secretly tape phone conversations in Maryland. This evidence may be enough to clear Tripp of any wrongdoing.
It's not so clear what, if any, evidence might exonerate Clinton. Surely if any existed, the White House would have felt compelled to include it in their rebuttals, and yet only weak denials are offered. In denying any charge of perjury, for example, Section VII of the first Memorandum, reads like a handbook for the language of Clintonese, sloppily suggesting that Clinton's obtuse and evasive verbiage might succeed in barely squeaking under the limbo pole of some vague, mutant form of the "truth":"If answers are truthful or literally truthful but misleading, there is no perjury as a matter of law, no matter how misleading the testimony is or is intended to be... The government must prove the defendant had a subjective awareness of the falsity of his statement at the time he provided it... Answers to questions under oath that are literally true, but unresponsive to the questions asked, do not, as a matter of law, fall under the scope of the federal perjury statute. That is so even if the witness intends to mislead his questioner by his answer and even if the answer is false by 'negative implication'..."And here's the best one:"Literally truthful answers that imply facts that are not true... are not capable of being false."Obviously, Clinton's attorneys are not quite as skilled at tergiversating as their client, so allow me to interpret the "semantic defense": Clinton somehow didn't consider fellatio to be "sex," despite Judge Susan Webber Wright's unabashed definition of "sexual relations": "(1) contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of any person."
The President's "linguistic parsing" may fly as "literal" truth or as "legally accurate" in Clinton's crowd, but most Americans I know operate under a clear definition of "sex." And most Americans I know operate under a clear definition of the words "prevaricator," "philanderer" and "malefactor," as well.
Just in case our president is similarly unsure of those definitions, I'll clarify: they mean "liar," "womanizer," and "criminal."
This article copyright © 1998 by Stephanie Herman and may not be reproduced in any form without the express written consent of its author. All rights reserved.