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On Jan. 17, 1998, President Bill Clinton testified at what turned out to be the most significant deposition in U.S. history. Sworn to tell the truth, he calmly lied about his affair with Monica Lewinsky, falsely stating he was never alone with her and that he never had sexual relations with her. He would soon repeat his lies on television: “I never had sex with that woman, Ms. Lewinsky.” Several months later he would attempt to wriggle out of his falsehoods in his videotaped grand jury testimony. But the harm was done. Clinton teetered for nearly a year on the edge of political ruin, becoming only the second president to be impeached. The scandal probably cost Al Gore the 2000 presidential election — either because it alienated voters from the Democratic party, or because the skittish Gore decided not to allow Clinton to campaign with him (or both). Now, in the big guy’s massive autobiography (Bill Clinton, “My Life,” Knopf, 2004), we can finally get a glimpse of the thought processes that led to his disastrous decision (the lying, not the sex). From a professional perspective, it is most instructive to consider Clinton’s relationship to the lawyers who represented him in the Paula Jones litigation. Jones sued Clinton for an incident of sexual harassment that allegedly occurred while he was governor of Arkansas. Clinton tells us that he had an early opportunity to head off the case by paying Jones a nominal amount and helping her husband find work in Hollywood. He refused to pay, however, “because I hadn’t sexually harassed her.” Instead, he hired Robert Bennett — of Skadden, Arps, Slate, Meagher & Flom — to defend him. Bennett is an exceptionally talented Washington litigator. He eventually succeeded in getting the Jones case dismissed on summary judgment, although not until after the political damage was irreparable. Other strategies were available to Bennett that might have saved Clinton from lying under oath. Unfortunately, Clinton himself evidently foreclosed those options, insisting on a more aggressive approach to the litigation. And even more significantly, it appears that the president consistently lied to his own lawyer. The details have to be pieced together, but the basic facts seem clear. As the fateful deposition in the Jones case approached, Clinton anticipated that he would be asked about sexual relationships with female employees. As he put it, “The presiding judge, Susan Webber Wright, had given Jones’s lawyers broad permission to delve into my private life, allegedly to see if there was a pattern of sexual harassment involving any women who had held or sought state employment when I was governor or federal employment when I was president.” An astute attorney, Clinton was “certain that the lawyers wanted to force me to acknowledge any kind of involvement with one or more women that they could leak to the press.” Moreover, he could not have doubted that Lewinsky’s name would come up at the deposition, because she had been disclosed on the plaintiff’s witness list a month earlier. In advance of the deposition, Clinton says he had “gone over a series of possible questions with my lawyers,” concluding that “I was reasonably well prepared.” He did not, however, tell them anything about Lewinsky. Did they ask about other women? It seems highly likely. Bennett has honorably maintained his silence, but no competent lawyer would have failed to ask a client about every name on the opponent’s witness list. Given the transparency of the plaintiff’s tactics — trying to force Clinton to discuss sexual liaisons — we can be all but certain Bennett put the question directly to the president. To put it bluntly, Clinton always expected to be asked about Lewinsky, and he always planned to lie, keeping his lawyer in the dark so he could get away with it. True to form, Jones’ lawyers used the deposition to dig into the relationship with Lewinsky. As Clinton recalls, they asked “how well I knew her, whether we had ever exchanged gifts, whether we had ever talked on the phone, and if I had had ‘sexual relations’ with her.” Silently relying on Judge Wright’s somewhat incomplete definition, Clinton “answered no to the ‘sexual relations’ question.” During a break in the testimony, Clinton lied to his lawyers again about Lewinsky. “My legal team was perplexed,” he says, “because Lewinsky’s name had shown up on the plaintiff’s list of potential witnesses only in early December, and she had been given a subpoena to appear as a witness two weeks later.” Of course, they were only perplexed because Clinton refused to tell the truth. Instead, he continued to dissemble: “I didn’t tell them about my relationship with her, but I did say I was unsure of exactly what the curious definition of sexual relations meant.” Puh-lease! Can we really believe that the president hinted so broadly to his lawyers that a less “curious” definition would lead to a more explicit answer? Again, we will probably never learn Bennett’s version, but surely he would have put two and two together. Imagine how the conversation would have gone (based solely on Clinton’s own account): BENNETT: Mr. President, we are perplexed. Why are they asking you about sexual relations with Monica Lewinsky? CLINTON: I don’t know. But I am unsure what is meant by the curious definition of “sexual relations.” Is it even remotely conceivable Bennett would have failed to ask a follow-up question? We are left with only two plausible scenarios. Either Clinton’s memoir is, shall we say, inaccurate about the hint to Bennett (diverting some of the blame to his lawyer for not figuring out what was going on), or Bennett actually pursued the hint but obtained only more misinformation from his client. Nearly all of Clinton’s woes, including impeachment, are traceable to his perjury in the Jones deposition. Ultimately, there was no proof that he ever induced anyone else to lie, or that he concealed evidence, or that he destroyed gifts from Lewinsky. But there was no doubt (among any but the most credulous) that he flatly lied in his deposition, and was later less than candid about it when he testified before a grand jury. Clinton, alas, remains in denial. He wasn’t lying, he writes; it was merely that he “had not been trying to be helpful to the Jones lawyers.” Or, as he testified to the grand jury, “I was determined to walk through the minefield of this deposition without violating the law, and I believe I did.” Well, he was mistaken. Ken Starr and the U.S. House of Representatives impeachment managers obviously concluded Clinton violated the law, although that was hardly an objective assessment. But so, too, did Judge Wright, who held Clinton in contempt for his false testimony. Clinton was also compelled to surrender his Arkansas law license because his evasive and misleading answers were prejudicial to the administration of justice. The greatest irony — or tragedy, or perhaps farce — is that Bennett easily could have rescued Clinton, if only the president had told him the truth. Adequately forewarned, Bennett surely would have counseled his client to tell the truth and skip the coy evasion. If the president refused, there were still feasible alternatives. They could have refused to attend the deposition, or they could have declined to answer “inappropriately personal questions,” asserting a right to privacy. Either measure would have been drastic, but far preferable to lying — and much less dangerous. Judge Wright would have imposed sanctions, but they would have been trivial compared to the eventual upshot of Clinton’s testimony. In fact, even the most severe sanction — entry of a default judgment — would not have been so bad. It would have ended the case completely, resulting only in a payment by Clinton. And probably not much money at that, given that Jones’ alleged financial damages were relatively modest. Her complaint only demanded $700,000. Even after defaulting, Clinton could have maintained his public denial of sexual harassment. A default judgment is not an admission of guilt. Clinton could have characterized his withdrawal from the case as a decision to spare the presidency from the intrusive indignity of the lawsuit, announcing that he would rather spend his time running the country than worrying about lawyers and litigation. In the hands of a masterful politician, a default judgment might have been portrayed a noble financial sacrifice for the sake of safeguarding the independence of his office. We can be sure that Bennett asked about Clinton’s relationship with Monica, but we do not know how sharply he inquired. Should Bennett have probed more deeply, asking tougher questions and refusing to accept Clinton’s blanket denial? Should he have realized that the legacy of the Clinton administration was in his hands? It is always hard to press your client, and it must be impossibly difficult when he is the most powerful individual in the world. So Bennett cannot be faulted for taking Clinton at his word, or even for failing to pick up on a few oblique hints. Robert Bennett trusted his client; it is too bad Bill Clinton did not return the favor. Steven Lubet is a professor of law at Northwestern University. His new book is “Murder in Tombstone: The Forgotten Trial of Wyatt Earp,” published by Yale University Press.

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