The Burden Of Proof

By ADAM COHEN

Adultery is still illegal in the District of Columbia. Have sexual relations with a woman not your wife, the lawbooks say, and you're looking at 180 days in jail and a $500 fine. And until 1995, sodomy, including oral sex, was illegal in D.C. But whatever kind of sex President Clinton did or did not have with Monica Lewinsky, his legal problems don't lie with the morals section of D.C. local law. It's a cluster of federal statutes, lumped under the rubric "obstruction of justice," that could spell trouble. As a former law professor, Clinton would have no problem parsing their legalistic references to "knowingly" doing this and "corruptly" doing that. But in truth they all boil down to a principle so basic in post-Watergate Washington it might as well be printed on the license plates: It's not the crime, it's the cover-up.

If the charges against Clinton are true, he could be in the worst legal spot a President has been in since Nixon was forced from office. Evidence seeping out in the media could support charges of perjury, suborning perjury and conspiracy to suborn perjury, all serious crimes. They could also, as some Republican Congressmen have begun to declare, rise to the level of the "high Crimes and Misdemeanors" the Constitution requires for impeachment. Other players in this drama may also be in legal trouble, including Clinton adviser Vernon Jordan, Lewinsky herself and even White House turncoat Linda Tripp. But obstruction-of-justice cases are notoriously hard to prove, and it isn't clear prosecutors would have the evidence they need. It is also uncertain whether the Constitution even permits criminal charges to be brought against a sitting President. Impeachment is a possibility, but it is a drastic step and would not be invoked lightly.

The simplest charge to emerge against Clinton is that he perjured himself at his deposition in Paula Jones' civil suit when he reportedly denied having an affair with Lewinsky. But this turns out not to be a simple charge at all. "It's like Nixon used to say: Perjury is a tough rap to prove," says Duke law professor Sara Sun Beale. Much would depend on the precise words Clinton used in his deposition, and he has proved adept at phrasing answers with lawyerly attention to detail. The statement, "There is no sexual relationship," for example, could let him off the hook if there was an affair in the past that is now over, or if he succeeded with a claim that oral sex did not constitute a "sexual relationship."

Lewinsky has reportedly denied the affair in a sworn affidavit given to Starr, which he is now using as a lever. If he is able to "flip" her by threatening to bring criminal charges against her, it would set up a "he said, she said" standoff, with an uncertain outcome. But if she sticks to her denial--and says any claims of an affair on Tripp's tapes were just talk--Starr might have a difficult time. Of course, any tapes of Clinton leaving a message on Lewinsky's answering machine, if they exist, might help Starr. He could also try to prove the affair through circumstantial evidence like White House visitor logs, gifts and--perhaps more scientifically--a dress that reportedly has a semen stain from Clinton, which could be subjected to DNA testing. But what might seem to be the strongest evidence, Tripp's tapes of Lewinsky, would very probably be inadmissible as hearsay in a case against Clinton.

Clinton, Jordan and Lewinsky could all be charged with suborning perjury--encouraging a witness to lie under oath--and obstruction of justice. Lewinsky has reportedly said on tape that Clinton and Jordan tried to get her to lie about the alleged affair. Both men have denied it. Here too, much depends on whether Lewinsky testifies against them. Starr might have trouble getting a conviction for suborning perjury if all the principals agree it didn't happen. And again, much would turn on context and precise words. If the two men just gave her general advice to be discreet--not advising her about what to say in a deposition--it would be perfectly legal. Even if they were referring to the deposition, it would depend on how specific the advice to misrepresent the truth was. "It's not suborning perjury to say you shouldn't volunteer something," says Northwestern University law professor Paul Robinson. There are reports that Lewinsky said on tape that the President told her, "There is no evidence, so you can deny, deny, deny." But you are allowed to urge a witness to deny something that is untrue. And Clinton's lawyers could argue something got lost in Lewinsky's casual paraphrase of his remarks.

Suborning perjury, or at least conspiring to, may be the strongest charge against Lewinsky. Starr reportedly has a set of written "talking points," which appear to have been written by a lawyer, that Lewinsky used to urge Tripp to tailor her testimony to protect Clinton. That could be conspiracy to suborn perjury. This talking-points document is already being touted as Starr's strongest weapon to force Lewinsky to cooperate in a case against Clinton.

Starr could also possibly pursue an array of conspiracy charges. If Clinton worked through Jordan or another intermediary to get Lewinsky to lie, as has been alleged, it could be conspiracy to suborn perjury or obstruct justice. The same would be true if Clinton and Jordan discussed getting Lewinsky a job in exchange for her false testimony, or if anyone inside the White House or out helped her prepare the talking points for Tripp.

Any number of other violations of law could end up in court before it's all over. Tripp may have broken Maryland law if she taped Lewinsky without her consent. Clinton may have sexually harassed Lewinsky, though it seems unlikely. "It appears Clinton didn't force her into it and that the relationship wasn't unwelcome," says Mary Coombs, a University of Miami law professor. Finally, if any of the accounts of what occurred that have leaked out prove untrue, Lewinsky, and conceivably even Clinton, could turn the tables and sue for defamation.

The U.S. Supreme Court ruled for the first time last year, in Paula Jones v. William Clinton, that a President can be sued in a civil matter. Some legal scholars read into that decision a willingness to make the President answerable to criminal prosecutions as well. But others argue that the Founding Fathers intended the Impeachment Clause to be the only mechanism for prosecuting a President. As a practical matter, Starr is more likely to present evidence of illegal activity by Clinton to Congress for impeachment proceedings than to a federal court for trial.

The drumbeat for impeachment hearings has already begun. "It will be very hard to resist the impetus" for hearings, says House Judiciary chair Henry Hyde. The process starts with a congressional investigation. It takes a majority vote of the House of Representatives to impeach, and if the vote carries, a trial is conducted by the Senate. A two-thirds vote is required to convict, which would cause the President to be removed from office. Andrew Johnson is the only President ever impeached, and the Senate failed to convict him. In the only other close call, Nixon resigned at the height of Watergate before the House could vote on impeachment.

Though the Constitution doesn't define "high Crimes and Misdemeanors," there is little doubt that the worst of the obstruction-of-justice and perjury charges against Clinton, if true, would qualify. But Clinton's accusers would have the same difficulties in proving obstruction of justice at an impeachment that Starr would have in court. It seems unlikely, in any case, that C-SPAN will be carrying a Clinton impeachment anytime soon. If it got to that point, he would be under powerful pressure to step down. "The Democrats would force the President out before it got that far," says George Washington University law professor Stephen Saltzburg. "They would not allow him to take the party down with him." The truth will likely emerge soon. "This is not Iran-contra or Watergate--it's not that complicated," notes Saltzburg. No, it's not. When a fuller picture emerges, Clinton's case will be decided in the court of public opinion long before it finds its way into a court of law.