Balkinization  

Friday, September 28, 2007

Clarence Thomas and Alberto Gonzales Under Oath

JB

In his upcoming 60 Minutes interview on Sunday, Justice Thomas remarks that the elephant in the room in his 1991 confirmation hearings was abortion, and that the real reason for strong opposition to his nomination was not Anita Hill's accusations of sexual harassment but Thomas's views on abortion, because, at the time he and David Souter were considered likely fifth votes and sixth votes to overturn Roe v. Wade.

Accepting Thomas' claim for the moment, it is worth considering why conscientious senators might have been deeply disturbed by Thomas's testimony. In these key excerpts, Judge Thomas states under oath that he never formed a personal opinion about Roe v. Wade, never discussed the merits of the case, commented on it, stated his views about it or debated it. These statements were either false or deliberately misleading. Judge Thomas could and did say that it was inappropriate for him to state how he would decide particular cases that came before the Court, including abortion cases. But he went much further than this and made statements about his views and his prior statements about the case that, to the minds of much of the audience, were simply unbelievable.

Flash forward to today. If Senators believed that Alberto Gonzales could not remain as Attorney General because of his incredible statements and his feigned inability to recall details of conversations and decisions, wouldn't it follow that there would be very good grounds for voting against Judge Thomas for a lifetime appointment on the Supreme Court?

It's likely that some Senators voted against Thomas because they didn't like his position on abortion. But it's also possible that they voted against him because they thought he had perjured himself under oath and in front of Congress.

The real scandal of the Thomas hearings was that the Senators as a group were not willing to confront Thomas about his behavior in these excerpts the way that many of them did sixteen years later following Alberto Gonzales's testimony. Instead, they waited until Anita Hill made her accusations of sexual misconduct, and then they spent much of their time arguing about whether Thomas had lied about that.

After taking the bench Justice Thomas quickly disproved any doubts about his abilities as a jurist; he has proved himself to be one of the theoretically interesting Justices on the Supreme Court. But his later decisions did nothing to undercut the very strong evidence that what he said before the committee that day was deliberately misleading and possibly perjury.



SEN. LEAHY:
Judge, you were in law school at the time Roe versus Wade was decided. That was 18 years -- 17-18 years ago. I would assume -- well back up this way. You would accept, would you not, that in the last generation Roe versus Wade is certainly one of the more important cases to be decided by the US Supreme Court?

JUDGE THOMAS:
I would accept that it's certainly been one of the more important, as well as one that has been one of the more highly publicized and debated cases.

SEN. LEAHY:
So I would assume that it would be safe to assume that, when that came down you're in law school where recent case laws are discussed, the Roe versus Wade would have been discussed in the law school while you were there.

JUDGE THOMAS:
The case that I remember being discussed most during my early part of law school was I believe in small group with Thomas Emerson may have been Griswold since he argued that. And we may have touched on Roe v. Wade at some point and debated that, but let me add one point to that, because I was a married student and I worked, I did not spend a lot of time around the law school doing what the other students enjoyed so much, and that's debating all the current cases and all of the slip opinions. My schedule was such that I went to classes and generally went to work and went home.

SEN. LEAHY:
Well, Judge Thomas, I was a married law student who also worked, but I also found that at least between classes we did discuss some of the law, and I'm sure you're not suggesting that there wasn't any discussion at any time of Roe versus Wade?

JUDGE THOMAS:
I cannot -- I -- Senator, I cannot remember personally engaging in those discussions. The groups that I met with at that time during my years in law school were small study groups.

SEN. LEAHY:
Have you ever had discussion of Roe versus Wade other than in this room? (Laughter.) In the 17 or 18 years it's been there?

JUDGE THOMAS:
Only, I guess, Senator, in the fact that, in the most general sense, that other individuals express concerns one way or the other and you listen and you try to be thoughtful. If you're asking me whether or not I've ever debated the contents of it, the answer to that is no, Senator.

SEN. LEAHY:
Have you ever, private gathering or otherwise, stated whether you felt that it was properly decided or not?

JUDGE THOMAS:
Senator, in trying to recall and reflect on that, I don't recollect commenting one way or the other. There were, again, debates about it in various places, but I generally did not participate. I don't remember or recall participating, Senator.

SEN. LEAHY:
So you don't ever recall stating whether you thought it was properly decided or not?

JUDGE THOMAS:
I can't recall saying one way or the other, Senator.

SEN. LEAHY:
Well, was it properly decided or not?

JUDGE THOMAS:
Senator, I think that that's where I just have to say what I've said before, that to comment on the holding in that case would compromise my ability to rule --

SEN. LEAHY:
May I ask you this -- have you made any decision in your mind whether you feel Roe versus Wade was properly decided, now without stating what that decision is?

JUDGE THOMAS:
I have not made, Senator, a decision one way or the other with respect to that important decision.

SEN. LEAHY:
When you came up for confirmation last time for the circuit court of appeals, did you consider your feelings on Roe versus Wade should you have been asked?

JUDGE THOMAS:
I have been not -- would I have considered, Senator, or did I consider?

SEN. LEAHY:
Did you consider?

JUDGE THOMAS:
No, Senator.

SEN. LEAHY:
So you have not -- you cannot recollect ever making -- taking a position, whether it's properly decided or not properly decided, and you do not have one here that you would share with us today?

JUDGE THOMAS:
I do not have a position to share with you here today on the proper -- whether or not that case was properly decided. And, Senator, I think that it's appropriate to just simply state that to -- that it is -- for a judge, that it's late in the day as a judge to begin to decide whether cases are rightly or wrongly decided when one's on the bench. I truly believe that doing that undermines your ability to rule on those cases.

SEN. LEAHY:
Well, with all due respect, Judge, I have some difficulty with your answer, that somehow this has been so far removed from your discussions or feelings during the years since it was decided while you were in law school. You've participated in a working group that criticized Roe. You cited Roe in a footnote to your article on the privileges or immunity clause. You've referred to Lewis Lehrman's article on the meaning of the right to life. You specifically referred to abortion in a column in the Chicago Defender. I cannot believe that all of this was done in a vacuum absent some very clear considerations of Roe versus Wade, and in fact, twice specifically citing Roe versus Wade.

JUDGE THOMAS:
Senator, your question to me was, did I debate the contents of Roe versus Wade, the outcome in Roe versus Wade, do I have this day an opinion, a personal opinion, on the outcome in Roe versus Wade, and my answer to you is that I do not.

Comments:

Prof. Balkin, great post as always. I don't want to put words in your mouth, but by reading between the lines, one could infer that you're suggesting that Justice Thomas' testimony constituted an impeachable offense. Am I reading too much into this?
 

I think it is quite clear that then-Judge Thomas was engaging in egregiously misleading testimony to Congress regarding his knowledge of and interest in Roe. But there are two cautionary notes: First of all, perjury is notoriously hard to prove. Even consciously "misleading" testimony is not the same as "perjury." The Court has recognized the process of testifying and bearing weitness as a kind of game, a contest between skilled (or, as is usually the case with senators, not-so-skilled) interrogators and uncooperative witnesses. Secondly, ardent defenders of President Clinton claimed that his almost undoubted perjury before the grand jury and misleading, if not perjurious testimony at his deposition, didn't constitute the kind of "high crime and misdemeanor" necessary to justify impeachment. Perhaps one wants to argue that the "good behaviour" standard for judges is more relaxed than the "High Crimes and Misdemeanors" standard for presidents, but I think it's a stretch, especially when the bad behavior is ostensibly the commission of a crime, which perjury is.

It would, frankly, be close to frivolous to suggest that Thomas should now be impeached for testimony given 16 years ago. I suspect that the statute of limitations has run within the ordinary criminal justice system. He never should have been confirmed, and one of the justifications for voting against him was surely disgust at his patently implausible testimony. The senators had their chance, and they blew it.

I'm certainly not a fan of Justice Thomas, but I agree with Jack that he has more than acquitted himself in terms of displaying whatever we mean by "legal competence." I disagree with many of his decisions, some of which I think are quite dreadful in the vision they display of America's future, but that is neither here nor there with regard to deciding whether he is smart enough to be on the Court. He is.
 

Prof. Balkin:

After taking the bench Justice Thomas quickly disproved any doubts about his abilities as a jurist; he has proved himself to be one of the theoretically interesting Justices on the Supreme Court.

I'm not quite so sure on that. I suspect you're seeign the handiwork of his Federalist Society clerks. He says very little himself.

I remember watching with shock and dismay when, on C-SPAN, some kid had asked him about the rationale of one of the leading (and milestone) cases of the previous term, B.S.A. v. Dale, and his reply was that this was from last term, and he just couldn't remember....

It's possible he did remember, but for reasons (perhaps diplomatic, perhaps political) chose to lie, but it's also possible he just didn't know. And this from a former EEOC chairman....

Cheers,
 

Prof. Levinson:

The Court has recognized the process of testifying and bearing weitness as a kind of game, a contest between skilled (or, as is usually the case with senators, not-so-skilled) interrogators and uncooperative witnesses.

True. See Bronston.

For another commonly misunderstood example of such, consider Clinton's famous "It depends on what the meaning of 'is' is." Roundly ridiculed -- and put forth by the RW as an example of quasi-'perjury' or at the very least, an example of failure to "tell the truth, the whole truth, and nothing but the truth" (frequently misunderstood as the legal obligation of deponents; it is not) -- in fact, it was an example of Clinton helping his questioners. The question (IIRC, something like "Is there a relationship [with Lewinsky]?" used the present tense, and at that time, Clinton had severed the relationship. Clinton might have been subject to a perjury charge (assuming all other elements) had he falsely testified "yes", but a truthful answer of "no" might also haunt him; being literally correct, but hardly reflecting the actual circumstances and possibly a vehicle for attack on him for that reason. He hinted that verb tense was important WRT the question. Yet he was ridiculed from that, when in fact the proper blame should have fell on the clueless (pr perhaps devious) questioners that failed to ask the right question.

Cheers,
 

As a geezer (77), I sort of understand a much younger Justice Thomas' memory failures. After all, the memory is the second thing to go.
 

to "tell the truth, the whole truth, and nothing but the truth" (frequently misunderstood as the legal obligation of deponents; it is not)

Arne, that's the oath given at every deposition I have ever taken.

Now I realize failure to "tell the whole truth" doesn't usually constitute perjury, but I assume the oath isn't meaningless-- the deponent has an obligation to tell the whole truth.

He hinted that verb tense was important WRT the question. Yet he was ridiculed from that

First of all, he was ridiculed for several reasons. One, he didn't just parse in that one instance, but parsed his way through the entire scandal. "Is", "sexual relations", oral sex is not sex, etc. This was just a very memorable example of it.

Second, while such parsing can sometimes get you out of a perjury conviction (though not always-- the jury certainly has the power to disbelieve you and conclude that you really were lying and not parsing), that doesn't make it right. Clinton knew darned well what they were asking about, and he didn't want to refuse to answer the question or admit the affair because he was afraid how it would play politically. So, he got cute. And remember, there was a cost to this-- his supporters fanned out and trashed Ms. Lewinsky as a deranged "stalker".

Finally, whatever you think about the "is" issue, Clinton clearly perjured himself when he testified about sexual relations. His claim that he did not have sexual relations with Ms. Lewinsky depending on him never once touching her with an intent to gratify-- she only touched him. Nobody believes that-- and Ms. Lewinsky herself denied it.
 

Re: CT and his law clerks thinking for him.

I believe Stevens is the only justice that writes his own first drafts, so your criticism could be just as easily lobbed at any other justice. Thomas is extremely conservative no doubt, but he's not dumb (although I certainly don't think he's as agile as Souter or Breyer; I leave Scalia off the list because he'll just tell you he's really smart).
 

shag from brookline:

As a geezer (77), I sort of understand a much younger Justice Thomas' memory failures. After all, the memory is the second thing to go.

True. I'm getting a bit long in the tooth myself. That being said, if you can't remember the rationale in perhaps the signal case of the preceding term, you might be excused for your shaky memory, but you'd hardly be a good jurist. It would be like me forgetting Ohm's law or order of precedence for C operators....

Cheers,
 

dilan:

[Arne]: to "tell the truth, the whole truth, and nothing but the truth" (frequently misunderstood as the legal obligation of deponents; it is not)

Arne, that's the oath given at every deposition I have ever taken.


I've heard of other, less florid oaths, albeit that is a common phrasing. Nonetheless, it is not one's legal duty. See Bronston, where he told "something in addition to the truth" and didn't "tell the truth", much less "the whole truth". As the court explained, it is not the job of the deponent to clarify the situation, even if he seeks to mislead; it is the job of the questioner to refine the questioning:

"Yet, if the questioner is aware of the unresponsiveness of the answer, with equal force it can be argued that the very unresponsiveness of the answer should alert counsel to press on for the information he desires. It does not matter that the unresponsive answer is stated in the affirmative, thereby implying the negative of the question actually posed; for again, by hypothesis, the examiner's awareness of unresponsiveness should lead him to press another question or reframe his initial question with greater precision. Precise questioning is imperative as a predicate for the offense of perjury."

Id.

Cheers,
 

Dilan:

First of all, he [Clinton] was ridiculed for several reasons....

I addressed one. A mre prominent one.

... One, he didn't just parse in that one instance, but parsed his way through the entire scandal. "Is", "sexual relations", oral sex is not sex, etc....

Not entirely his fault. Wright adopted a modified definition of "sexual relations" after objection, one that was rather bizarre. Under that definition, his parsing was self-serving, but hardly knowingly false. You may say that it doesn't make sense, but that was the definition he had to work from, for better or for worse. Had the Jones lawyers wanted, they could have asked the further questions to clarify the situation. I think they were more interested in leaving the answer be and looking for a perjury trap; their interest was far more towards hurting the president than it was towards vindicating their client's interests.

... This was just a very memorable example of it.

And, as I explained, a mistaken and misunderstood "example".

Cheers,
 

Dilan:

Finally, whatever you think about the "is" issue, Clinton clearly perjured himself when he testified about sexual relations. His claim that he did not have sexual relations with Ms. Lewinsky depending on him never once touching her with an intent to gratify-- she only touched him. Nobody believes that-- and Ms. Lewinsky herself denied it.

What's dispositive is not that a statement be false (strangely enough, reading the law literally, you may perjure yourself in stating a true fact). What matters is that you believe it to be false. There's an interesting case (sorry, lost the cite) where a person answered the question asked him truthfully. The question (once again) was a poor question (it covered the wrong year, one that wasn't at issue), and the answer given was true on its face. The appeals court upheld a perjury conviction ... but they couldn't bring themselves to upholding a perjury charge for a true answer, so they manufactured a set of beliefs: That the actual 'question' was for the right year even if, literally, it was the wrong one, and that the defendant had actually thought he was answering this (manufactured or at least implied) question, and that he believed that his literally truthful response was in fact false. How the appeals court could decide such a factual matter (what the defendant believed he'd been asked, and what he thought of the truthfulness of his answer, given the 'question') without actually looking at any evidence for such (AFAIK, this issue of the truthfulness of the answerand the nature of the question wasn't raised during trial) and why this factual determination wasn't for a jury to decide, is beyond me. I think he ought to have, at the very least, gotten a new trial.

Weird, eh?

Cheers,
 

Arne,
My personal observation about memory was not intended to provide cover for Justice Thomas. (My true intention in noted at the end of this comment.)

In my 50+ years of practice, I have had occasion to question witnesses, who usually are not attorneys. Often witnesses are evasive, especially on cross. I believe that the evasive witness has a very good memory as he glides through in being evasive. An attorney as witness can also be evasive, as demonstrated in the Q & A posted. Geezers like myself might just plain forget, and say so. But Justice Thomas' answers seem to be a tad evasive. Surely all attorneys who have engaged in litigation know how a witness can be evasive. But it strikes me differently when the witness is a Supreme Court nominee: don't we expect more from him?

Now as to my intention, this was a silly old trap (that even Lisa's brother did not fall for) for a "sharp" lawyer to ask: "What's the first to go?" to which I would have responded "I forget."
 

I've heard of other, less florid oaths, albeit that is a common phrasing. Nonetheless, it is not one's legal duty. See Bronston, where he told "something in addition to the truth" and didn't "tell the truth", much less "the whole truth". As the court explained, it is not the job of the deponent to clarify the situation, even if he seeks to mislead; it is the job of the questioner to refine the questioning:

We are talking past each other. Not all lies under oath constitute perjury. But that doesn't mean they don't violate the oath.

By taking the oath, the witness is obligated to tell the whole truth. However, not telling the whole truth doesn't necessarily expose a person to perjury liability, because the legal standard for a perjury conviction is narrower.

Not entirely his fault. Wright adopted a modified definition of "sexual relations" after objection, one that was rather bizarre. Under that definition, his parsing was self-serving, but hardly knowingly false.

I don't buy it. Sorry to be graphic, but Clinton remembers putting a cigar in Lewinsky's vagina, and don't tell me he doesn't. He also must know that he felt her up and groped her.

All of those things-- things done to her with the intent to arouse-- fell within the definition of sexual relations even as narrowed by Judge Wright.

He wasn't simply parsing. He was lying, deliberately.
 

Jack --

I do not think the comparison of Justice Thomas and Alberto Gonzales is fair, nor do I believe you characterization of Thomas' confirmation testimony is accurate.

Denying any recollection of having debated or discussed the merits of Roe is not the same as denying any such discussions may have taken place. Further, Judge Thomas acknowledged having "general" discussions about Roe since law school, just not taking an explicit position on its merits.

As for whether Thomas' statements was simply "feign[ing] inability" to recall what he did, consider that there were substantial efforts made to find witnesses who would contradict Thomas' testimony and yet, to my knowledge, no such witness emerged. Further, as Justice Stevens has commented, Roe was not the central focus of legal debates when it was first decided in 1973, nor in 1975, when Thomas graduated from law school (and Stevens was nominated to the Court).

Jonathan H. Adler
 

I don't find Thomas' testimony unbelievable at all. In my experience, career-oriented law students with family responsibilites don't spend a lot of time arguing about the latest Supreme Court decision. Roe really became controversial after it was decided. And aspiring government bureaucrats with moderate Republican connections might well want to avoid indiscreet discussions about abortion.

As for Clinton, dilan gets it right. The reason Wright had to set out such a legalistic definition of "sexual relations" was precisely that Clinton was wiggly. It's a bit outrageous that Clinton's defenders today blame Wright for confusing poor old Bill. Receiving oral sex was indisputably within the scope of Wright's definition, and Clinton of course knew that.
 

Prof. Balkin doesn't ever seem to read these comments, but I wonder if he's as upset over Souter's quite similar testimony about Roe? To wit, he claims that he didn't remember having discussed Roe at the time (except for the fact that he and other people switched "back and forth" and played "devil's advocate"), and he said that it would be "misleading" to say that he currently had any "opinion" of Roe. Under the standard normally applied to Justice Thomas, the fact that Souter voted for either side in Planned Parenthood v. Casey proves that he was lying, right?

QUOTE:

SEN. KOHL: Just a couple of questions on Roe [v.] Wade. In 1973 when it was promulgated, you were in the AG's office --

JUDGE SOUTER: Yes.

SEN. KOHL: -- and it's hard to go back to what you did that day, or in the days and weeks after, but I am just presuming that there was conversation between you and your colleagues at that time. Do you recall your feelings about Roe v. Wade back when it was promulgated?

JUDGE SOUTER: I frankly don't remember the early discussions on it. I mean, everybody was arguing it. The -- the -- it was probably fought, after more argument among lawyers, than any other case certainly of its time, and the only thing I specifically remember is that I can remember -- not only I but others whom I knew really switching back and forth, playing devil's advocate on Roe v. Wade.

SEN. KOHL: You had no -- you had no opinion about it other than just to say, "Wow"?

JUDGE SOUTER: Oh, I doubtless -- I doubtless had an opinion. No, I didn't just say wow.

SEN. KOHL: What was your opinion in 1973 on Roe [v.] Wade?

JUDGE SOUTER: Well, with respect, Senator, I'm going to ask you to let me draw the line there --

SEN. KOHL: Okay.

JUDGE SOUTER: -- because I don't think I could get into opinions of 1973 without their being taken indications of opinions of 1976.

SEN. KOHL: Okay. With respect to Roe [v.] Wade just once more, is it fair to state even though you're not prepared to discuss it, understandably, that you do have an opinion on Roe [v.] Wade?

JUDGE SOUTER: It -- I think it would be misleading to say that. I have not got any agenda on what should be done with Roe v. Wade if that case were brought before me. I will listen to both sides of that case. I have not made up my mind. And I do not go on the Court saying I must go one way or I must go another way.


This is from N.Y. Times, Sept. 15, 1990, at 10.
 

That was by me, Stuart Buck
 

Stuart, I do read the comments-- especially yours!-- I just don't respond to all of them. As for Souter's testimony, I'm far less worried about it because Souter openly admits he did have opinions about Roe, did discuss it, and amplified his statements to Kohl by immediately explaining that by having no opinion that day he meant only that he was willing to be open minded about Roe. Thomas's statements about what he thought, believed and discussed were far more implausible. You can try to read them innocently if you like, but you have to engage in Gonzales-like interpretations. That, of course, was precisely the point of my post.
 

No aspersions intended! It's just that I rarely recall seeing you get down in the weeds of the comments section here (which is hardly surprising given the shouting matches that often occur).

In any event, my reaction is that (a) Souter wasn't pressed on the point quite as much as Thomas (although I could be wrong; I'd have to read the entire transcript); and (b) while you find Thomas's claim never to have discussed the "contents" of Roe implausible, I think Souter's answer on that point is hardly any better. He admits that there were discussions, but claims that he has no memory of them beyond the fact that both he and other people were playing "devil's advocate" and "switching back and forth." I can hardly imagine a phrasing that would more completely devoid of any actual information; Souter might as well have said that he didn't remember any discussions at all.

You say, "Souter openly admits he did have opinions about Roe, . . . and amplified his statements to Kohl by immediately explaining that by having no opinion that day he meant only that he was willing to be open minded about Roe."

I think that Thomas's statements, read as a whole, have the same elements:

1. Souter is asked whether he has "an opinion on Roe [v.] Wade?" He answers, "I think it would be misleading to say that." Thus, at one point he effectively denies having an opinion. Thomas also says, as you point out, "do I have this day an opinion, a personal opinion, on the outcome in Roe versus Wade, and my answer to you is that I do not." [Remember, Thomas was more libertarian in the 1980s, as can be seen from his interview with Reason magazine where he says that he is "torn" as to whether non-discrimination laws are valid; plus, he had left the Catholic church at that point. I find it very plausible that he may have been personally up-in-the-air on the abortion issue.]

2. Souter also uses additional phrasing indicating that he DOES have an opinion, but doesn't want to prejudge the case: "I have not got any agenda on what should be done with Roe v. Wade if that case were brought before me. I will listen to both sides of that case. I have not made up my mind." Same for Thomas; earlier in the colloquy, he's asked whether Roe was correct, and he responds, "I think that that's where I just have to say what I've said before, that to comment on the holding in that case would compromise my ability to rule."

So both Souter and Thomas: (a) deny having an opinion, but also (b) use language elsewhere implying that they are merely declining to talk about their opinions.
 

At the risk of beating a dead horse:

Pithlord: As for Clinton, dilan gets it right. The reason Wright had to set out such a legalistic definition of "sexual relations" was precisely that Clinton was wiggly....

They started with a fairly generic, "legalistic", one -- which might have served the purpose reasonably well -- but under objection, Wright narrowed it in a peculiar way. You can't reasonably complain that the way Wright narrowed it was because "Clinton was so wiggly". Nonetheless, deponents are permitted to be wiggly, particularly when the questioning is abusive and not relevant (as it arguably was here; in the end Wright ruled all this embarrassing [but legally inadmissible] stuff out). And it was the job of the questioners to remove any lack of clarity or ambiguity through their questioning.

... It's a bit outrageous that Clinton's defenders today blame Wright for confusing poor old Bill....

Nice "straw man". No one (and in particular, not I) has said that Clinton was "confused".

... Receiving oral sex was indisputably within the scope of Wright's definition, and Clinton of course knew that.

Except under the peculiar and asymmetric definition, it was not "indisputably" within the definition.

Furthermore, it's arguably NOYB.

Cheers,
 

Arne:

Just to be clear, I agree with you and disagree with pith that the receipt of oral sex was within the definition used in the Jones deposition.

My point is that this only gets Clinton halfway to where he needed to go before he could answer the question "no", because the definition clearly did cover any touching of Lewinsky that was intended to arouse. I.e., the cigar, the groping, etc., was all covered. And as I said, I simply do not believe any claim that Clinton wouldn't have remembered the cigar or the groping. The cigar, especially, seems like something anyone would remember.

Since you close by noting it is NOYB, I should add that Clinton could have refused to answer the questions and let Judge Wright sanction him, and taken an interlocutory appeal if necessary to avoid probing questions into his sex life.

He didn't do this, for political reasons, and one can certainly argue that such political considerations are a perfectly good defense to an impeachment proceeding, which is itself political in nature. They do not, however, mean that he wasn't perjuring himself. The witness doesn't get to decide himself what questions he will answer truthfully and what questions he will lie in response to.
 

Dilan:

Since you close by noting it is NOYB, I should add that Clinton could have refused to answer the questions and let Judge Wright sanction him, and taken an interlocutory appeal if necessary to avoid probing questions into his sex life.

I suggested at the time (it's in the UseNet archives) that he should do just that. Politics has an ugly way of intruding, and while he shouldhave done so legally, keep in mind that thye Arkansas Project etc. wasn't about legalities, but rather politics ppure and simple, down low and dirty....

An appeal to FRE Rule 403 might have been appropriate, but even then the public may not have been up on the nuances of teh Federal Rules of Evidence....

I'd note that the rules on deposition subject matter are not as strict as those on evidence admitted at trial; if the information is supposed to lead to admissible evidence, the questioning is generally allowed. This is what in fact happened; the Jones lawyers, on objection, said they would show later the relevancy/admissibility of the line of questioning. Wright allowed it, under the mistaken assumption that a gag order could be placed on anything not relevant. She did so, but the Jones lawyers sneaked around the order (IIRC) to leak the testimony. If anyone should have been sanctioned by Wright, it was them>, for violating the gag order and using the information to embarrass Clinton for extra-judicial purposes.

Cheers,
 

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