Clinton's Crisis: The Burden Of Proof

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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.