There's a young woman, a dress, a faithless friend, and consequences that threaten to unseat the most influential person in the world. Is it any wonder that Australians are bemused at the goings-on of their American cousins, so like us in character and demeanour, yet an almost different species in their hunger for the intimate details of their leaders' private lives. We shouldn't be surprised, of course, not once we've witnessed the cult of celebrity and scandal that define all things American from politics to Oprah Winfrey. Can you imagine Australians sharing their innermost secrets with a national television audience; or even wanting to know the minutiae of their political leaders' sex lives? But what do we really know about the recent Clinton controversies? Is it about sex? Politics? A modern version of the Spanish Inquisition? No, at the bottom line it's about the law. And here at Law In The Lounge we'd like to give you a roadmap for the journey through this legal maze. It didn't start with a midnight rendezvous in an oval shaped office in Washington DC. The genesis of this case can be traced back to a real estate investment 20 years ago in Arkansas (pronounced "Arkansaw"), Clinton's home state, when he was that State's Attorney General. This has come to be known as the Whitewater Investigation. In 1978 Bill and Hillary Clinton entered into a partnership with another couple, the McDougals. They formed the Whitewater Development Corporation and bought 22 acres of land. Unfortunately for the investors the development was far from successful, and they had to wear a $40,000 loss. It is from this point that everything gets terribly complicated. You see, Hillary (a top lawyer in her own right) did some legal work for the McDougals, unrelated to the land deal, but the McDougals strayed from the legal straight and narrow. So much so that the McDougals have since been convicted of fraud related to the Whitewater deal. Given the allegedly criminal activities of their partners, and the fact that the Clintons borrowed money through the McDougals' failed financial institution, it wasn't long before criminal allegations attached to the Clintons as well. These allegations became the subject of an investigation. In August 1994 Kenneth Starr was appointed by a three-member panel of judges to investigate the Whitewater dealings. This power comes from a law that was passed as a result of the Watergate scandal. Under this law, the US Federal Attorney General must appoint an independent counsel if there is reasonable grounds to believe that certain federal employees, including the President, have broken the law. As Clinton likes to say, this investigation has never been able to really pin anything on him with regard to Whitewater. So how did we get from Whitewater to Lewinski? To understand this you have to look at another piece of unsavoury business involving the President, in the guise of…. Paula Jones (v. The President) In 1994 Paula Corbin Jones sued the President of the United States, alleging that when he was Governor of Arkansas, he exposed himself to her in the Excelsior Hotel in Little Rock on May 8, 1991. She claimed that she had suffered because of the alleged ‘‘sexual harassment and assault’’, and wanted financial compensation. Clinton strenuously denied the claim, and he was not alone in declaring that it was politically motivated –her legal representation was paid by senior conservative organisations who are politically opposed to Clinton.The President asked the U.S. Supreme Court to delay the case until he left office, but they decided to allow it to continue on the basis that "it was unlikely the case would burden Clinton's time" – little did they know! The battle between the legal teams became heated, with her lawyers filing hundreds of documents containing scandalous accusations. But it all came to an abrupt end when U.S. District Judge Susan Webber Wright threw the case out of court, before the trial had even started, deciding that it did not pass muster. The judge agreed that Clinton may have made a "crude proposition" to Jones, but it would not constitute sexual assault.So why is this case important? Because it brought into play the now notorious Ms Lewinski. Okay, so Paula Jones accused Clinton of sexual assault. But before that case was thrown out, Jones's lawyers got an anonymous tip-off that a young woman, Monica Lewinsky, had been sexually involved with Clinton. This was important because it might establish a pattern of sexual infidelity on Clinton's part. In December 1997 they subpoenaed Lewinski to give evidence in the pre-trial process known as a "deposition". What's important here is that her evidence was given under oath, so she was expected to tell the truth. This is where the versions of the "truth" begin to diverge. According to some commentators, Lewinski met with Clinton, who reportedly advised her about the best way to lie in her deposition. Clinton rejects this. Whatever, by the time she gave the evidence under oath in January this year, she did in fact deny any sexual relationship with Clinton. You'll remember that when we left Special Prosecutor Starr, he was investigating the Whitewater allegations. In January this year he went back to the Attorney General and asked her permission to expand the investigation to include the question of whether Clinton tried to convince Lewinski to lie about their relationship. The judges who oversee the operation of the Special Prosecutor agreed to this petition. The next day Clinton was questioned by Jones's lawyers for six hours in his own pre-trial deposition – in his evidence, under oath, he denied that there had been a sexual relationship with Lewinski.But oh what a tangled web we weave…Linda Tripp was a friend of Monica Lewinski – as they say, with friends like her, who needs enemies? Monica confided in Tripp that she had been sexually involved with Clinton. For reasons not yet entirely clear, Tripp took it upon herself to secretly tape 17 intimate telephone conversations with Lewinski.It's quite clear that without Tripp's intervention Clinton would not be in hot water today. Because, believe it or not, she took those tapes and gave them to Special Prosecutor Starr! He then set her up with the FBI to use professional recording equipment, a "wire", to tape conversations with Lewinski that further revealed the alleged sexual relationship with Clinton. This was the evidence Starr needed to suggest that Clinton had indeed lied under oath in his deposition in the Jones case. Why did Lewinski eventually change her tune and give evidence to Starr in his pursuit of Clinton? Well, she was subpoenaed to give evidence to Starr's grand jury, at which point she really had to tell the truth or face a charge of perjury herself. And that was the deal she made with Starr – he wouldn't pursue the alleged perjury in her evidence to the Jones case (where she denied the relationship with Clinton) if she spilled the beans to his grand jury.What’s a grand jury? – good question. The American Constitution requires a "grand jury" to approve a federal criminal charge before it can go to court. It's like a check to make sure that prosecutors don't abuse their power. These hearings are held in front of a jury of ordinary citizens.This is similar to the "committal" system in Australia, where a hearing is held (before a judge) to decide whether there is sufficient evidence for a person to stand trial on certain serious crimes. Like committals, the grand jury is not there to decide guilt or innocence, but whether there is enough evidence to justify the charge. But there are vast differences. For one thing, grand jury proceedings are held in secret, whereas committals are held in public. Also their power is substantial:
Remarkably for Australians, the defendant is not allowed to ask questions or have a lawyer face his accusers. So it is understandable that in most cases the prosecution gets the grand jury to recommend a prosecution in court. Starr has some heavy artillery at his disposal. The allegation that Clinton lied under oath about his relationship with Lewinski represents a serious problem for the President. Lying under oath, even in a pre-trial deposition procedure, amounts to perjury. If it is proved that Clinton attempted to get Lewinski to lie as well, this would be the crime of "suborning perjury", another serious offence. There is also the possibility of "obstruction of justice", which would include anything the President might have done to stop Lewinski from testifying; or "conspiracy", if it is proven he planned with others to obstruct her testimony or dissuade her from telling the truth. Does this mean that Clinton could be prosecuted in the same way as any other citizen? This is one of the great unanswered questions of this case, because in the U.S. the President assumes a unique position as the head of State – it would seem that there are Constitutional barriers to his criminal prosecution. But there is the possibility of "impeachment".What happens? The Special Prosecutor presents a report of his investigations and recommends either for, or against, impeachment. What does this mean? The Constitution provides that "the president…shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanours." This has never actually happened in two hundred years. It is a long and complex procedure wherein the House of Representatives can then call for Clinton's impeachment, and send the case to the Senate, where he is tried in the same manner that a court would undertake a prosecution. There are a number of ways that this could be achieved, including one member of the House introducing a resolution of impeachment which Members would vote on, or more likely by way of an inquiry by the House Judiciary Committee. If the committee believes the President has indeed committed "high crimes …" they would send "articles of impeachment" to the House for a full vote. What is a "high crime and misdemeanour"? That is up to the House of Representatives, but perjury and obstruction of justice would have to be considered serious crimes. If he is impeached and removed from office, Clinton could then be prosecuted like any other citizen. This is what might have happened to Richard Nixon following his resignation, if Gerald Ford had not given him a presidential pardon. However, it should not be assumed that any of this would be straightforward. If nothing else, there would not be much enthusiasm for Clinton's impeachment, which is as much a political decision as anything else. At this point he remains popular, and it may be useful for the Republicans to have a "lame duck" President in office until the next election. There has been much criticism of Starr's tactics, which have variously been described as a cross between the Spanish Inquisition and a kangaroo court. His aggressiveness is exemplified by the sight of Monica Lewinski's mother, distraught at the prospect of giving evidence about her daughter's most intimate confessions. And what about:
To Australian eyes much of this seems to be loaded in favour of one side, where information can be gathered with impunity. Here's an interesting piece of legal analysis. As all Law In The Lounge readers know, Clinton made a television address following his testimony to the grand jury on 18th August. In that address he asserted that his original denial of "sexual relations" with Lewinski in the Jones testimony was "legally accurate", even though he now agreed that there had been "inappropriate behaviour". What? Before he gave his deposition in the Jones case, Clinton's lawyers insisted that "sexual relations" be strictly (and narrowly) defined. Specifically, the definition refers to physical contact between the two. Given that the alleged contact is oral sex, does this leave Clinton room to claim that the sex was all in one direction? This would have to be one of the best examples of legal tap dancing you're ever likely to see. Nevertheless, it is clearly Clinton's intention to use these legal niceties to avoid an allegation of perjury. Can it get any sillier than this? If Clinton has already admitted to sexual contact (if not "relations"), you have to wonder why a sample of his DNA is needed to match the genetic material apparently found on that infamous blue cocktail dress? A dress, by the way, held in secret by her mother! Perhaps it is needed for Lewinski's inevitable teary appearance in an upcoming episode of Oprah? We can see it now: "And Monica, it must have been so painful for you to have that reminder of your liaison hanging in your mother's closet? Our hearts ache for you, don't they (collective sigh from the audience)?" Such is the stuff of American dreams. God bless Australia. Here's your link to the Starr report Read this: The legal information contained above is intended to be general information about the law. It is not a substitute for legal and other professional advice. Lawscape Communications P/L does not accept responsibility for loss to any person, who either acts or does not act because of this information. |