BESIDES FINDING NEW DEPTHS OF MEANING in the words is and alone, President Clinton has enlivened public discourse with his distinction between legally accurate and true. "Legally accurate" is his euphemism for testimony that is not false in the sense required for a perjury conviction. Thus, the president claims that, although he had sexual contact with Monica Lewinsky, it was legally accurate for him to deny the sex under oath, because he was really just outsmarting hostile lawyers who didn't know how to word their questions. This may be talented advocacy, but it is bad law.
President Clinton's claim to legal accuracy rests on a few phrases lifted from a 1973 Supreme Court case, U.S. v. Bronston. But the president and his defenders exaggerate the applicability of that case to his testimony. According to Bronston, there can be no perjury if the only reasonable meaning of a person's words is "literally true." It's tough luck for prosecutors if (as happened in Bronston) they draw false conclusions from true testimony.
On the other hand, if a witness's words are reasonably capable of communicating something false, they may well be perjurious. And that is a fair description of the testimony that President Clinton gave in Paula Jones's sexual-harassment suit. When he denied having sexual relations with Lewinsky, his words could reasonably have meant something false. Indeed, the most natural meaning of what he said to Jones's lawyers is something false, and the context shows that a false meaning was intended.
The president's defense is that, through careful parsing, his misleading denials of sex can be shown to permit a narrow meaning that is truthful. This is not a new argument. In 1974, Watergate defendant Dwight Chapin appealed a perjury conviction with the same argument, also based on an optimistic reading of Bronston. The U.S. Court of Appeals rejected Chapin's reliance on Bronston and sent him off to prison for ten to thirty months. It held that a "defendant's assertion that he had an unusual meaning in mind" did not protect him from a perjury conviction. Chapin's petition to the Supreme Court was denied, based on an opposition filed by Charles F. C. Ruff, then a Watergate special prosecutor and now President Clinton's White House counsel.
A closer look at the two cases shows that President Clinton's testimony and defense are startlingly similar in form to those of Dwight Chapin and bear little relation to Samuel Bronston's.
The Bronston case arose from a bankruptcy proceeding, during which Bronston was asked whether he had any Swiss bank accounts. He replied: "The company had an account there for about six months." When prosecutors later learned that Bronston had personal Swiss accounts, the government successfully prosecuted him for perjury, and he appealed.
The government argued that Bronston's non-responsive answer made it natural to assume he had no personal Swiss accounts. The Supreme Court was unimpressed. It pointed out that Bronston had given clear notice that he was limiting his answer to company accounts. If the lawyers were misled, it was because they were asleep at the switch. In such a situation, the remedy was "precise questioning" rather than a perjury prosecution.
Bronston's words -- "the company had an account there" -- were both truthful and had only one reasonable meaning. More often words have a range of possible meanings. That does not mean, however, that all statements built of such words are fatally ambiguous. To the contrary, ordinary people rely on context to identify the message that words are intended to convey, and so do federal courts. The courts have held that a statement is false if (1) the words used were reasonably capable of communicating a false message, (2) the false message in fact was communicated, and (3) the witness intended to communicate the false message.
The issue of intent is important, and it is proved circumstantially. If the witness really intended the words to communicate a true message, the fact that they were perceived in another way does not justify a perjury conviction. On the other hand, if the witness intended his words to convey a false message and they did so, he has perjured himself -- notwithstanding his belief that the words in isolation could also be shown to have a meaning that is technically accurate.
Nixon White House aide Dwight Chapin learned this lesson the hard way. Chapin had recruited Donald Segretti to carry out "political pranks" that would disrupt the 1972 Democratic presidential nominating process. As Ruff later explained to the Supreme Court in his filing against Chapin: "It was hoped that the dissention [caused by the pranks] would prevent the Party from coalescing behind its eventual nominee." For example, Segretti faked a letter "on the stationery of Senator [Edmund] Muskie charging that Senators [Hubert] Humphrey and [Henry] Jackson had been involved in sexual misconduct."
After the Watergate burglary, Segretti's name was found in G. Gordon Liddy's address book. One thing led to another, as it often does, and Chapin eventually found himself before a grand jury where he gave the following testimony, for which he was convicted of perjury:
Q. To your knowledge did Mr. Segretti ever distribute any statements of any kind, or any kind [sic] or any campaign literature of any kind?
Chapin. Not that I am familiar with.
Q. Did you ever express any interest to him, or give him any directions or instructions with respect to any single or particular candidate?
Chapin. Not that I recall.
Chapin appealed his conviction, arguing that the questions were ambiguous and that, as he understood them, he had answered truthfully. He said he understood the first question to be asking whether Segretti personally handed out campaign literature, as opposed to having someone else distribute it. He construed the second question to be asking whether he had ever instructed Segretti to zero in on one candidate to the exclusion of others. If the questions were understood in this way, Chapin asserted that his answers were, to borrow President Clinton's phrasing, "legally accurate."
The Court of Appeals disagreed. It allowed that, if the testimony were viewed in isolation, the words Chapin used reasonably could have the narrow meanings that he asserted. It also agreed that, if the testimony had those meanings, the government had failed to prove perjury. Nevertheless, citing Bronston, the court upheld Chapin's perjury conviction, and the Supreme Court denied Chapin's petition for review.
The Court of Appeals explained that, in addition to the narrow meanings assigned by Chapin, the words he used were reasonably capable of broader meanings that the government had proved were false. For example, Chapin knew that Segretti had caused literature to be distributed, whether or not Segretti had actually handed it out himself. Similarly, Chapin had given instructions concerning individual candidates, even if several candidates were discussed in the course of his conversation with Segretti.
The key question, according to the court, was whether the jury had a reasonable basis for concluding that the broader false meanings were the ones Chapin intended and understood at the time. It found that a common-sense evaluation of the context of the testimony provided a fully adequate basis for the jury to convict. For example, when Chapin testified to the grand jury, he knew that its interests were broad, and he had no reason to give the questions a narrow meaning that would deprive the grand jury of information he knew it wanted. Also, Chapin "would not have responded so equivocally" if he really had thought the questions were narrow. Thus, the jury had properly used its common sense to find "that Chapin's answer was knowingly false under the only reasonable interpretation of the question."
In opposing Chapin's request for Supreme Court review, Special Prosecutor Ruff argued that Chapin had "falsely minimized his involvement with Segretti" in matters such as "the so-called 'sex letter.'" He said the case might be more difficult if Chapin had advanced a "possible-and-reasonable interpretation." The Court of Appeals was "clearly correct," however, that "in the context of the purpose of the grand jury's investigation, which was known to Chapin, and the series of questions asked," Chapin's interpretation was not "reasonable." A possible but unreasonable interpretation was no defense.
Ruff further pointed out that accepting Chapin's argument "would bar all perjury prosecutions, because almost any question or answer can be interpreted in several ways when subjected to ingenious scrutiny after the fact." Chapin's conviction, Ruff concluded, was "fully consistent with . . . Bronston" and did not "raise any novel or complex legal issues."
The analogies to President Clinton's situation are striking. There is no real dispute that the words he spoke under oath were capable of communicating broader meanings than he now says he intended. Nor is there doubt that those broader meanings were false. For example, his denial of a "sexual relationship" could quite reasonably be understood to deny his interactions over the course of two years with Monica Lewinsky.
And as in Chapin, the context of the president's testimony shows that the broader meanings were intended and understood. For example, President Clinton knew that the Paula Jones case rested on allegations that he had asked Jones for oral sex. To argue that the president was not asked about the form of sex that the case focused on is precisely, as Ruff put it two decades ago, to subject Clinton's deposition "to ingenious scrutiny after the fact."
Even if the president believed it possible that the legalistic definition of sex used for his deposition (and limited by the judge to save him embarrassment and to protect the dignity of his office) could be interpreted narrowly to exclude oral sex, nothing suggested that such a narrow meaning was reasonable. He said nothing to signal that he was using such a meaning, and he did not expressly limit his testimony as Bronston did. Indeed, in his August grand-jury testimony, the president admitted that he was not interested in communicating clearly. Finally, as was true of Dwight Chapin's perjurious statements, the president's testimony contains ambiguities and evasions that would not have been necessary if he had really believed that the questions had the limited meaning he now asserts.
In short, as White House counsel Charles F. C. Ruff once correctly pointed out, a "possible" true meaning of one's words does not mean one has not committed perjury if every "reasonable" meaning is false. If President Clinton had an "unusual meaning in mind" when he testified, it is not a get-out-of-jail-free card. Just another feeble excuse.
Thomas W. Kirby is a litigator and federal election lawyer with a Washington, D.C., firm. The views expressed are his own.