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The Law of Perjury
In and of itself, lying is not a crime. To commit perjury, a person must have taken an oath to testify truthfully. Federal law also requires that the person "willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true." This is often called the false statement requirement. Not only must the accused have made a false statement, but it must have been material, and the accused must have known that the statement was not true.
The United States Supreme Court has set a high standard for determining whether a statement is false for purposes of perjury law. The seminal case is Bronston v. United States, 409 U.S. 352, 353 (1973). The issue in Bronston was "whether a witness may be convicted of perjury for an answer, under oath, that is literally true but not responsive to the question asked and arguably misleading by negative implication."
The case arose because Mr. Bronston was involved in bankruptcy proceedings. Attorneys for his creditors were examining him, under oath, regarding his assets in various countries. During this examination, the following exchange occurred:
Q. Do you have any bank accounts in Swiss banks, Mr. Bronston?
A. No, sir.
Q. Have you ever?
A. The company had an account there for about six months, in Zurich.
The "truth" was that Bronston had had a large personal bank account in Switzerland for five years.
Bronston was convicted of perjury, and his conviction was affirmed on appeal. But the Supreme Court reversed. The Court acknowledged that in ordinary conversation, Bronston's response would probably be understood to imply that he had never had a personal bank account in Switzerland.
But this was a legal proceeding where the parties were represented by lawyers trained in adversarial proceedings. Chief Justice Burger emphasized that the perjury statute refers to what the witness "states," not to what he "implies." If a witness equivocates or gives a vague response, it is the examining lawyer's responsibility to probe more deeply and to clarify the answer. The Bronston case is therefore understood as having established a literal truth defense to the charge of perjury.
A literal truth defense may seem appealing, but what does it mean for something to be "literally" true? For example, if someone asks you how many children you have, and you say “I have two children,” it is certainly true that you have two children, even if you actually have a total of four. Of course, your response is quite misleading, and some people would probably call it a lie.
that most people would consider these responses to be so misleading can
be explained by philosopher Paul Grice’s
Cooperative Principle, which suggests that people engaged in
conversation cooperate in the search for meaning. The cooperative
principle consists of a number of maxims, each of which is an
instantiation of the general principle. Thus, the maxim of
quantity requires that a person give enough information for
of the exchange. In other words, you are
expected to make your contribution sufficiently informative under the
circumstances. If we understand a question
as inquiring into
the total number of children that you have, and you respond "two," I
will assume that you are observing the maxim of quantity and that you
are providing me with enough information to answer my question.
In other words, I assume that your answer "two" means "two and no
The Clinton Impeachment
At around the same time that this was happening, Paula
who had had worked for the state of
Arkansas when Clinton was governor of that state, filed a lawsuit
against Clinton for
sexual harassment. To the extent it is relevant, she
was encouraged and assisted in these efforts by Clinton's political
who were eager to embarrass him and hoped to undermine his political
The lawyers for Jones arranged to depose Clinton on January 17, 1998. Much of the deposition had to do with Clinton's relationship with Lewinsky, even though a consensual relationship with Lewinsky was not particularly relevant to the issue of sexual harassment of Jones. The Jones case was later dismissed.
this time, Kenneth Starr had been operating as independent counsel,
investigating some controversial investments that Clinton
and his wife had made while he was governor of Arkansas.
This became known as the Whitewater
investigation. The investigation was not going
well. Kenneth Starr
therefore began investigating whether Clinton committed perjury during
deposition in the Jones lawsuit. He convened a grand jury and
compelled Clinton to testify before it on
August 17, 1998.
Representatives voted to impeach Clinton for having lied in his
before the grand jury. They focused on
Clinton’s statements about how often he had been alone with Lewinsky in
the White House, and
he had engaged in “sexual relations” with her. Clinton
ultimately acquitted and finished out his term in office.
How Often Were Clinton and Lewinsky Alone?
major issue in the Clinton impeachment proceedings was whether he had
perjury in his testimony regarding how often he and Monica Lewinsky had
alone in the White House. Paula Jones's
lawyers had asked him about this during the deposition:
Q: Now, do you know a woman named Monica Lewinsky?
A: I do.
Q: How do you know her?
A: She worked in the White House for a while, first as an intern, and then in, as the, in the legislative affairs office. …
Q: ... At any time were you and Monica Lewinsky together alone in the Oval Office?
A: "I don't recall. . . She--it seems to me she brought things to me once or twice on the weekends. In that case, whatever time she would be in there, drop it off, exchange a few words and go, she was there." ...
In fact, Clinton later admitted they had been alone for some 10-15 times. So, did Clinton make a false statement?
Clinton starts out by testifying that he does not recall. Had he said nothing else, this would almost certainly have been perjurious. To say "I don't think so" or "I don't recall" or "I'm not sure" is false if the speaker does remember something. But Clinton then continues by admitting she brought him some papers once or twice. This is true, but it is not the whole truth. At the same time, notice that the question did not ask for the total number of times they were alone. Thus, while the answer might be misleading, it seems to fall within Bronston's literal truth defense.Clinton was probably aware of the Bronston case and did his best to give "literally true" responses. It's not clear that he always succeeded. For example, he was also asked in the deposition whether he and Lewinsky were ever alone in the hallway between the Oval Office and the kitchen area:
I don't believe so, unless we were walking back to the dining room with the pizza. I just, I don't remember. I don't believe we were alone in the hallway, no.
In fact, according to the Starr report, much of the activity with Lewinsky took place in that hallway. If the Starr report is correct, Clinton’s statement here is likely to have been false, unless perhaps he forgot about these trysts in the hallway.
Did Clinton Have Sexual Relations with “That Woman”?
of the famous (or infamous) scenes from the impeachment proceedings is
Clinton's remark about the meaning of "is."
During the deposition, Clinton’s lawyer, Robert Bennett, objected to questions being asked about Lewinsky, and made the following statement:
I question the
good faith of
counsel, the innuendo of the question. Counsel is fully aware that Ms.
has filed--has an affidavit, which they are in possession of, saying
is absolutely no sex of any kind in any manner, shape or form with
During the grand jury proceedings, Kenneth Starr accused Clinton of making an “utterly false statement” by not speaking up and correcting his lawyer’s comment. Clinton responded that Bennett’s statement was not necessarily false. He explained: “It depends upon what the meaning of the word ‘is’ is” and remarked that in the present tense, the statement was true.
Even though Clinton was
subjected to much ridicule for this reponse, it is actually completely
true. Clinton’s physical
relationship with Lewinsky had ended some time before the deposition. For Starr to claim that this is perjury comes close to
being an abuse of the office of prosecutor, in my opinion.
During Clinton's deposition in the Paula Jones case, lawyers for Jones asked him about his relationship to Monica Lewinksy:
Q. Did you have an extramarital sexual affair with Monica Lewinsky?
Q. If she told someone that she had a sexual affair with you beginning in November of 1995, would that be a lie?
A. It's certainly not the truth. It would not be the truth.
Toward the end of the deposition the subject arose again when Clinton’s lawyer, Robert Bennett, asked the president—his own client--several questions. Some of these questions related to an affidavit that had been submitted by Lewinsky:
Q: In paragraph eight of her affidavit, she says this: “I have never had a sexual relationship with the President, nor did he propose that we have a sexual relationship, he did not offer me employment or other benefits in exchange for a sexual relationship, he did not deny me employment or other benefits for rejecting a sexual relationship.”
Is that a true and accurate statement as far as you know?
A: That is absolutely true.
later admit under oath, during his grand jury testimony, that he and
were physically intimate and that it consisted of "inappropriate
contact," although he insisted that the encounters "did not consist of
sexual intercourse." Clinton would later also essentially admit
they engaged in oral sex. So did he commit
perjury when he stated in the Jones deposition that he had not had a
affair” with Lewinsky and that the statement in her affidavit denying a
relationship" was "absolutely true"? Not surprisingly, lawyers
for Independent Counsel Kenneth Starr quizzed Clinton on this point
during the grand jury proceedings. Clinton replied:
I believe at the time that she filled out this affidavit, if she believed that the definition of sexual relationship was two people having intercourse, then this is accurate. And I believe that is the definition that most ordinary Americans would give it.
If you said Jane and Harry have a sexual relationship, and you're not talking about people being drawn into a lawsuit and being given definitions, and then a great effort to trick them in some way, but you are just talking about people in ordinary conversations, I'll bet the grand jurors, if they were talking about two people they know, and said they have a sexual relationship, they meant they were sleeping together; they meant they were having intercourse together.
So, I'm not at all sure that this affidavit is not true and was not true in Ms. Lewinsky's mind at the time she swore it out.
explicitly invoking the ordinary definition of the term "sexual
relationship." As any
linguist can tell you, the ordinary meaning of a term depends upon
usage. So how do speakers of English use this term?
A study by two researchers, Stephanie Sanders and June Reinisch, which was reported in the Journal of the American Medical Association, indicated that most college students (around 60%) would not say they "had sex" with someone if they had oral sex without intercourse. It might also be relevant that at least one version of Webster’s Dictionary defines “sexual relations” as “coitus,” which clearly refers to intercourse and excludes oral sex.
I am not arguing that
right about the ordinary meaning of phrases like “sexual
relations,” or that he was wrong. The term is relatively vague,
it seems to me.
But it does seem to me that persuading twelve jurors to
agree beyond a reasonable doubt that
Clinton made a false statement when he denied having a “sexual affair”
Lewinsky, or when he stated that Lewinsky’s affidavit was true, would
difficult. On neither of those occasions
was the crucial phrase, either “sexual affair” or “sexual
defined, nor was there any effort to ascertain how Clinton understood
phrases. If prosecutors wish to convict
someone of perjury, they should only be able to do so when the
contains terminology that is more specific and is not open to competing
meanings. At the least, the questioners should pin down what a
witness means by such a vague term.
Strangely enough, Jones's lawyers never tried to establish how
Clinton understood the phrase exactly. Instead, they handed
Clinton a written definition of the term.
working for Paula Jones were not dumb. The Jones lawsuit was
funded by wealthy conservatives who wanted Clinton removed from office,
so Jones had excellent legal representation. They should have
known that Clinton would be a wiley witness. So they tried to pin him
down with a written definition of the term "sexual relations."
But their definition was ineptly drafted in convoluted legalese.
And they seriously underestimated Clinton's intelligence.
The original definition had three subparts. Judge Wright ruled that only the first subpart applied, leaving the definition as follows:
the purposes of this definition, a person engages in "sexual
relations" when the person knowingly engages in or causes
(1) contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to gratify or arouse the sexual desire of any person…
"Contact" means intentional touching, either directly or through clothing.
This is obviously what linguists call a prescriptive definition, or what I have called a declaratory definition. (See Peter Tiersma, Legal Language, at pp. 117-118). Such definitions are not intended to describe actual usage. Instead, they declare what the meaning of the phrase is to be for a particular purpose. Very often they are used in statutes, as in a federal statute that provides that for purposes of this statute, the term "state" includes Puerto Rico. Notice that with a declaratory definition, the ordinary meaning is no longer relevant. Puerto Rico cannot argue that it is not affected by the statute because, in reality, it is not a state. In other words, the declaratory or prescriptive definition supersedes the ordinary meaning of the term, at least in legal practice.Like a lawyer reading a federal statute and searching for a loophole for a client, Clinton read the definition in a very literalistic way and found the loophole that he was seeking. This allowed him to testify during his deposition, when being questioned by a lawyer for Jones, that he had never engaged in "sexual relations" with Lewinsky under the definition:
Q. … And so the record is completely clear, have you ever had sexual relations with Monica Lewinsky, as that term is defined in Deposition Exhibit 1, as modified by the Court? …
A. I have never had sexual relations with Monica Lewinsky. …
Is this a lie??
This time, Clinton could not rely on the ordinary meaning of the
phrase, as in earlier questions. Starr's lawyers asked him about
it during the grand jury testimony. Clinton replied:
Is this a lie?? This time, Clinton could not rely on the ordinary meaning of the phrase, as in earlier questions. Starr's lawyers asked him about it during the grand jury testimony. Clinton replied:
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A. Yes. My -- I can tell you what my understanding of the definition is, if you want me to --
A. -- do it. My understanding of this
definition as it covers contact by the person being deposed
with the enumerated areas, if the contact is done with an intent to arouse or gratify. That' a my
understanding of the definition.
Q. What did you believe the definition to include and exclude? What kinds of activities
A. I thought the definition included any activity by the person being deposed, where the person was the actor and came in contact with those parts of the bodies with the purpose or intent or [sic] gratification, and excluded any other activity.
Because Lewinsky engaged in oral sex on him, and not vice versa, Clinton argued that she had engaged in contact with one his relevant body parts, so under the definition she had had sexual relations with him. But he argued that he had never engaged in contact with one of her listed body parts, so that under the definition he had not engaged in "sexual relations" with her.
a lot of people this distinction seemed absurd. How can a woman
have sexual relations with a man, whereas the man did not have sexual relations with the
woman? The grand jury therefore asked Clinton how Lewinsky could
have had sexual relations with him, while he did not have sexual
relations with him:
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windows media format
Q Well, the grand jury
would like to know, Mr. President, why it is that you think that oral
performed on you does not fall within the definition of sexual relations as used in your
A Because that is -- if the deponent is the person who has oral sex performed on him, then the
contact is with -- not with anything on that list, but with the lips of another person. It seems to
be self-evident that that's what it is. And I thought it was curious.
Let me remind you, sir, I read this carefully. And I thought about it. I thought about what
'contact' meant. I thought about what "intent to arouse or gratify" meant.
And I had to admit under this definition that I'd actually had sexual relations with Gennifer
Flowers. Now, I would rather have taken a whipping than done that, after all the trouble I'd
been through with Gennifer Flowers...
If Clinton is being
truthful about what happened (she touched some of his enumerated body
parts while he did not touch any of her listed body parts), it does
seem--even though it is very counterintuitive--that he is technically
correct. It goes to show that the use of a written definition,
adapted from a sexual harassment statute, was a very bad idea.
The definition was written like a statute, and Clinton did what many
lawyers tend to do with statutes--took in apart piece by piece and
interpreted every word very literally in a search for loopholes.
And it looks like he found one.
Of course, Clinton's
explanation requires us to believe that he never touched the enumerated
parts of Lewinsky's body. Monica Lewinsky has testified
under oath that Clinton kissed her breasts, for instance. If that
is true, that action would clearly come within the definition, and
Clinton would have perjured himself. Clinton never directly
admitted kissing her breast, however, so ultimately it seems to boil
down to a question of whom to believe. A classic "he said/she
said" scenario. I'll let the reader make his or her own judgment.
Clinton tried valiantly to
stay within the Bronston literal truth defense, while at the same time
admitting as little as possible and also attempting to mislead his
antagonists. I find it hard to judge him too harshly when the
impeachment was largely the effort by his political enemies to drive
him from office for activities that had nothing to do with his
performance as president. Still, his efforts to mislead, or to
hide the truth while not technically making a false statement, is
hardly praiseworthy. And although he did not lie nearly as much
as his enemies claimed, there are a number of occasions where he
clearly stepped over the narrow line that distinguishes truth from
For additional information on the language of perjury, see:
Peter M. Tiersma, Did Clinton Lie? Defining "Sexual
Relations," to appear in Chicago-Kent Law Review (2004)
Lawrence M. Solan and Peter M.
Tiersma, Speaking of Crime: The
Language of Criminal Justice (University of Chicago Press 2005)
Peter M. Tiersma, Legal Language (University of
Chicago Press 1999)
Peter M. Tiersma, The Language of Perjury: "Literal Truth," Ambiguity and the False Statement Requirement, 63 S. Cal. L. Rev. 373 (1990).
more on the Clinton Impeachment, see
Additional materials on the Jones
lawsuit and impeachment available at LANGUAGEandLAW.org
Starr Report: The Findings of Independent Counsel Kenneth W. Starr on
Clinton and the Lewinsky Affair (Washington
Phil Kuntz (ed.), The Starr Report:
The Evidence (1998) (this book contains the grand jury proceedings).
Stephanie A. Sanders & June Machover Reinisch, Would You Say You “Had Sex” if…?, 281 J. Am. Medical Ass’n 275 (1999)
Lawrence M. Solan, The Clinton Scandal: Some Legal Lessons from Linguistics in Language in the Judicial Process (Janet Cotterill, ed. 2002).
Richard A. Posner, An Affair of State: The Investigation, Impeachment, and Trial of President Clinton (1999).