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. Last Updated: 07/27/2016

Truth or Consequences




Although it may look like U.S. President Bill Clinton has many strategic decisions to make before Aug. 17, when he will testify at the White House about his relationship with Monica Lewinsky and perhaps other matters, only two real choices confront him. Ironically, in selecting between them, Hillary Clinton is the only person he can consult in complete confidence, because the spousal privilege alone remains impregnable to independent counsel Kenneth Starr's inquisitional powers.


Starr can subpoena every other Clinton adviser, except his private lawyer, David Kendall, but Clinton must even be careful about what he says to Kendall. If he tells Kendall one story, then contradicts it under oath, Kendall would probably have to resign.


The choice for Clinton, then, is between pragmatism and principle. A pragmatic approach focuses on results. It asks what harmful facts can be denied without negative consequences -- in court, in the unlikely event Starr tries to indict the president; before Congress, in the event of an impeachment inquiry; or to the public -- and then denies those facts whether or not they are true.


A principled approach means telling the truth -- because Clinton is president and it's the right thing to do. It is a symptom of this affair's corrosive effect that a suggestion of principle can sound so naive.


Now, of course, it is possible that the truth is what Clinton told the American public in January when he denied having had "sexual relations'' with Lewinsky and declared he "never told anybody to lie.''


If so, Clinton and the nation have been the victims of a demented and dangerous hoax. No such hoax is likely, however.


What is likely, what appears increasingly inescapable, is that Clinton and Lewinsky did have a prolonged sexual relationship; that Starr can prove it through Lewinsky's detailed testimony and corroborating evidence to the nth degree; that Clinton lied under oath when he denied the affair in his deposition in the Paula Jones case; and that he lied to the American people when he again denied "sexual relations'' with Lewinsky in January. I proceed on those assumptions.


Pincers and a vise have become the chosen metaphors "du jour'' for Clinton's current dilemma. If Clinton admits the affair with Lewinsky when he testifies Aug. 17, he will automatically establish his deposition as perjury.


But if he denies it falsely, he will have perjured himself again, this time not in a politically inspired meritless civil case, but before a grand jury. Those are the sides of the vise. If Lewinsky is telling the truth, what should Clinton do?


Thinking pragmatically, Clinton might be inclined to say that when he denied "sexual relations'' with Lewinsky in his deposition and his public statement, he was using those words to denote a specific act -- intercourse -- in which he and Lewinsky did not engage. So his statement, he could claim, was literally true. Similarly, he may contend that when he said he "never told anybody to lie,'' that was also literally true because (according to some media reports) he and Lewinsky agreed to lie. He did not tell her to do anything.


But that won't work. Paula Jones' lawyers were careful to define "sexual relations'' to encompass just about any heterosexual activity. While Clinton avoided any definition of "sexual relations'' in his January denial, it would insult the intelligence of an otherwise supportive American public to blame it for not interpreting Clinton's words as narrowly as he intended them.


Clinton might decide, nonetheless, and again pragmatically, to stick to his story even if it is demonstrably false because there will not be any practical repercussions -- not among the public, not in court and not in Congress.


So what if the public doesn't believe him? A majority does not believe him now, yet his approval ratings are a mile high. Clinton might figure that the public actually needs his denial, even a denial it does not believe, to avoid having to deal with the fact that he lied under oath and to the public. A confession could burst that bubble.


What does it matter if Starr can contradict Clinton's denial in 1,001 ways?


Starr will not indict. It's clear Starr wants only to file his reports with Congress and the court that appointed him and be gone. Furthermore, Starr knows that, constitutionally, he probably could not indict the president even if he wanted to.


In the unlikely event that he tried, court battles would delay any trial until the end of Clinton's term. Then, if a Democrat succeeds Clinton, the new president can do for Clinton what former U.S. President Gerald Ford did for Nixon: Issue a pardon. If the Democrats lose the White House in November 2000, Clinton will have 10 weeks to pardon himself before his term ends in January 2001.


So that leaves impeachment. Pragmatically, Clinton may figure, it's improbable that House Republicans would impeach him or that two-thirds of the Senate would convict him -- no matter what the strength of Starr's evidence. Doing so will expose Congress to the political fallout of Clinton's high approval ratings.


Sure, a grand-jury lie is serious, but the public can be encouraged in the view that any lie Clinton may have told to the grand jury merely continued a lie in a civil case that never should have been brought, in answer to a question that never should have been asked and would almost certainly never have been prosecuted if Clinton were not president.


Stephen Gillers is a professor of law at New York University School of Law. He contributed this comment to the Los Angeles Times.