Article 9 of 10
Rule of Law

Subornation of Perjury: A Definition

By Leo Katz
The Wall Street Journal
Page A23
(Copyright (c) 1998, Dow Jones & Company, Inc.)


The chief and most persistent charge leveled against President Clinton in connection with the latest scandal is that he suborned perjury -- by trying to persuade Monica Lewinsky and Linda Tripp to give false testimony about his sex life. But although subornation of perjury seems like a pretty straightforward crime, as a legal matter there are some peculiar things about it that are worth noting.

Subornation of perjury is part of a family of offenses generally grouped under the heading "obstruction of justice": tampering with evidence, threatening informants, bribing jurors, hindering investigators. It may seem self-evident that we should make these things crimes, but it really isn't. Think about a murderer who throws his gun into the river after knocking off his target; or think about a rapist who warns his victim and maybe some innocent onlooker not to tell anyone "or else." What they are doing of course "obstructs justice." They have quite literally tampered with evidence, threatened witnesses, suborned perjury.

Still, no one would dream of finding them guilty of such crimes. The reason? There is no investigation or prosecution that they are obstructing. It is only if they wait to dispose of their weapons or to threaten their witnesses until such an investigation has begun that they become guilty of these crimes. By the same token, if Mr. Clinton had told a prospective lover prior to the Paula Jones lawsuit that he would get involved with her only if she promised the utmost discretion -- including lying to the authorities about it, if need be -- he would, I'm pretty sure, be legally safe.

Now you might think that this just shows there is a loophole in the law. Maybe you think we really should extend the "obstruction of justice" offenses to include people who do their obstructing right after the crime or whatever it is that they are trying to cover up. But if you follow that logic to its bitter end, you will be driven to charge a murderer who avoids leaving fingerprints on his gun by wearing gloves with obstruction of justice as well -- or even the rapist who wears a mask. You would be driven to find Mr. Clinton guilty of obstruction even if all he had done was to arrange his trysts with such discretion that no one would have a clue as to who his partners might be.

The real lesson of my examples may be that "coverups" aren't quite the moral outrage that the law pretends they are. The law's attitude here reminds me of that old Tom Lehrer song called "The Irish Ballad" about a girl who systematically polishes off her mother, father, sister and brother. When in the final stanza the police finally catch up with her, she freely confesses to everything. Because, as the last line of the song tells us, "Lying she knew was a sin."

There is a second interesting oddity about the subornation of perjury charge against the president. Whatever it is that Mr. Clinton said to Ms. Lewinsky, he is unlikely to have expressly asked her to lie. What is more likely is that he hinted, implied, insinuated. Even the infamous talking-points memo Ms. Lewinsky passed to Ms. Tripp doesn't ever directly recommend lying. That just happens to be its upshot.

With most crimes, such indirection would be irrelevant. If a Mafia don tells his hit man that "it would be better if X disappeared," he would still be guilty of soliciting murder. But when it comes to perjury, courts are awfully literal-minded. In one famous perjury case, the Supreme Court acquitted a defendant who, when asked whether he ever had a Swiss bank account, replied that his company did. In fact, he did too, but by this devious reply he managed to mislead the lawyer on the other side into thinking he did not. Since what he said was literally true, the Supreme Court held it wasn't perjury.

In another case, a defendant took advantage of the questioning lawyer's slip of the tongue. The lawyer asked the witness whether he had ever made a delivery to Spade Bank, when he really meant to say Spade Building. The alert witness answered no, which was true -- but of course only literally. As the court saw it, that didn't qualify as perjury either.

In other words, we are not willing to convict someone of perjury who indirectly rather than directly lied. But that would make it a little strange -- not impossible, not illogical, just strange -- if we convicted someone of soliciting perjury when all he did was to indirectly rather than directly solicit someone to lie.

There is a final interesting oddity about the subornation charge. Perjury requires not merely a lie, but a "material" lie. If the president had merely asked Ms. Lewinsky to lie about the fact that -- let us say -- he wears a toupee, presumably he wouldn't be guilty of anything. Since the judge in the Paula Jones case excluded all evidence concerning Ms. Lewinsky, any lie she told is not likely to qualify as material. That doesn't mean, however, that the president is off the hook. The prosecution might think of charging him with attempted subornation of perjury. After all, he didn't know that the lie he was soliciting was immaterial.

The problem with charging the president with a criminal attempt here is that he was attempting the impossible. He was attempting to solicit perjury from a witness who was incapable of committing perjury because her testimony wasn't material! Now sometimes when someone is attempting the impossible, he is still guilty of criminal attempt: If I try to pick someone's pocket, not realizing it's empty, I am guilty of attempted larceny even though I was attempting the impossible.

There are other kinds of impossible attempts, however, for which courts refuse to convict. Suppose I happen to be one of those people who think that anytime he tells a lie in court it's perjury. (I don't realize the lie has to be material.) I then tell a lie about something totally inconsequential: I shave two years off my actual age. Am I attempting perjury just because that's what I think I'm doing? No court would convict me. They would explain that I was attempting a "legally impossible crime."

Whether they would say the same thing about the president's actions is a murky question. Just the kind of oddity law professors like to put on their final exams. I'll be sure to remember it for that purpose.


Mr. Katz is a professor of law at the University of Pennsylvania.


Copyright © 1998 Dow Jones & Company, Inc. All Rights Reserved.

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