Taking the Stand

by Alan Dershowitz

  The judge defined the term “sexual relations” as follows:

  For the purpose of this deposition, 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 arouse or gratify the sexual desire of any person.

  Contact means intentional touching, either directly or through clothing.

  Clinton answered:

  I have never had sexual relations with Monica Lewinsky. I’ve never had an affair with her.

  Under the judge’s definition, oral sex does, of course, constitute sexual relations. After the Jones lawyers completed their questioning, the President’s lawyer, Robert Bennett, asked the following question:

  In paragraph eight of her affidavit, [Monica Lewinsky] says this, “I have never had a sexual relationship with the President, he did not propose that we have a sexual relationship.”

  Is that a true and accurate statement?

  The President responded: “That is absolutely true.”

  Shortly thereafter, reports began to appear of tape-recorded conversations between Linda Tripp and Monica Lewinsky suggesting that there had been a sexual relationship of some kind between the President and Lewinsky.

  On January 23, 1998, I appeared on MSNBC and criticized Bennett for allowing the President to walk into a perjury trap. I recommended that the President “get a new lawyer, tell him the truth, sit down with your new lawyer … and [have him give you] the straight poop.” The lawyer has to be someone “who doesn’t care what the President thinks of him. His obligation is to tell the President what he doesn’t want to hear.”

  Several days later, Robert Bennett called me to complain about what I had said on television. Bennett kept me on the phone for nearly half an hour telling me that I did not understand his “strategy” in the case, accusing me of “Monday morning quarterbacking” his decisions.

  So I asked Bennett: “Did you ever advise the President that in addition to the option of settling the Jones case, he could simply default on the liability phase of the case?”

  Bennett replied that defaulting would have been “ridiculous” and “a stupid idea” and that he would never recommend it.

  So I asked Bennett what kind of an investigation he had conducted of the Lewinsky matter before he allowed the President to be deposed. He admitted that he’d simply accepted the President’s word, since it was supported by Lewinsky’s affidavit. When I asked him whether he had ever questioned Lewinsky, he gave a vague response. He said he was surprised about the questions asked concerning Lewinsky at the deposition.

  I told Bennett that I strongly believed he had made a mistake by walking his client into a perjury trap. He assured me that he knew what he was doing. I told him I hoped he was right, but that I still thought he had made a mistake.

  A lawyer owes his client the duty to explain all available legal options, even if he believes that the client will probably reject a given option. Bennett failed in this duty. He argued, in his own defense, that if Clinton had defaulted the Jones case, many more litigants would have “come out of the woodwork” and sued Clinton in the hope that he would default. To me, this is a fallacious argument for several reasons. First, the statute of limitations would have passed on virtually all allegations arising—as the Jones case did—before Clinton became president. Even more important, the moment it became public—which it quickly did—that the President previously had offered a $700,000 settlement to Jones, there was more than enough incentive for gold diggers to come forward and sue. If Clinton was prepared to pay $700,000 to settle a suit he regarded as utterly frivolous and untrue, no greater incentive would have been added if he defaulted and paid.

  The sad reality is that Robert Bennett, perhaps in his zeal to chalk up a high-visibility win, failed or neglected to tell the President that this was one case that was better for the client to lose and avoid testifying rather than to win and risk testifying falsely.

  Defaulting the Jones case would have resulted in bad headlines the next day—and perhaps for an additional week. But testifying about his sex life resulted in a dangerous threat to the Clinton presidency—a threat that would not materialize for several months. It was another instance of the President making a decision that helped him in the short run—by avoiding the negative headlines of a settlement or default—but hurt him in the long run. And it was a pattern that would persist.

  On January 26, 1998, President Clinton, with the assistance of Hollywood producer Harry Thomason, decided to make a public statement denying a sexual relationship with Monica Lewinsky. Pointing his finger at the TV camera for emphasis, he said:

  “I want you to listen to me. I’m going to say this again. I did not have sexual relations with that woman, Miss Lewinsky. I never told anybody to lie, not a single time—never. These allegations are false. And I need to go back to work for the American people.”

  This statement, made directly to the American public and not under oath, came back to haunt Clinton. Why did he make it? He was under no legal obligation to make any statement. He could easily have said, as so many others have said, “Since the matter is now the subject of a legal proceeding, my lawyers have advised me to make no public comment about it. I’m sure you understand.”

  Instead, he issued a firm denial of what he would later have to admit was essentially true: Namely, that he did, in fact, have a sexual encounter with “that woman.”

  Once again, the President and his advisors opted for the quick fix. They felt that it was necessary to put out the political brushfire. By issuing a firm denial, the President could postpone—perhaps forever—the longer-term consequences of his improper sex and his misleading testimony. At the time he made the statement, the President likely was not aware that Lewinsky had saved the semen-stained dress that would eventually force him to change his story. Without the dress, it would always be a “she said, he said” conflict between the President and a woman who acknowledged on the Tripp tapes that she frequently lied, and whose own lawyer said was an impressionable woman who sometimes fantasized.

  Ultimately, the disclosure of the semen-stained dress made it undeniable that there had been sexual activity between them. President Clinton had to appear on television and acknowledge that he had behaved “inappropriately” with Monica Lewinsky. It was a low point both in his presidency and in his personal life.

  A few days later, President Clinton publicly acknowledged that he had behaved “inappropriately”; he flew to the Vineyard. The next day, we were at dinner together. The President gathered a small group—including several lawyers—around him and began to discuss the case. He said that following the unanimous Supreme Court decision refusing to postpone the lawsuit brought against him by Paula Jones,14 he’d had no choice but to submit to a deposition about his sex life, because Jones refused to settle the case. At that point, I told him he had had an alternative, and explained to him that he could have ended the lawsuit by simply defaulting and paying the damages that Paula Jones had sought. The President looked surprised: “Nobody ever told me I could have had the case dismissed if I had paid the money. [My lawyer] told me I had to be deposed.”

  Shortly thereafter, Bob Bennett was no longer representing President Clinton, and Clinton was seeking my legal advice, as his problems—all of which derived from the deposition he didn’t have to give—multiplied. He came close to being indicted. He was impeached by the House of Representatives (and eventually acquitted by an evenly divided Republican Senate) and disbarred.

  During the course of these proceedings I conferred with the President, provided legal memoranda to him and his lawyers, and discussed his case in the court of public opinion.

  I also testified on the President’s behalf as an expert witness on the law of perjury before the congressional committee that was considering whether to impeach him for the “high crime” of perjury.15 The chairman of the committee was Republican congressm
an Henry Hyde. Hyde and I repeatedly clashed. The front page of the Washington Post featured photographs the next morning of the two of us angrily pointing accusatory fingers at each other.16

  The source of our conflict was the selective outrage directed by Congressman Hyde and other Republican lawmakers at President Clinton’s alleged perjury. I began my testimony by putting President Clinton’s false statements into a broader historical context:

  For nearly a quarter of a century I have been teaching, lecturing, and writing about the corrosive influences of perjury on our legal system—especially when committed by those whose job it is to enforce the law.…

  On the basis of my experience, I believe that no felony is committed more frequently in this country than perjury and false statement crimes. Perjury during civil depositions and trials is so endemic that a respected appellate judge once observed that, quote, “experienced lawyers say that in large cities scarcely a trial occurs in which some witness does not lie.” Police perjury in criminal cases, particularly in the context of searches and other exclusionary rule issues, is so pervasive that the former police chief of San Jose and Kansas City has estimated that hundreds of thousands of law enforcement officials commit felony perjury every year testifying about drug arrests alone. But in comparison with their frequency, perjury crimes are among the most under-prosecuted in this country.

  I then went on to distinguish among various types of perjury—ranging from bearing false witness against a defendant facing the death penalty to being evasive about embarrassing sexual misconduct—and tried to place Clinton’s false statements in their proper place along this continuum.17

  I think it is clear that the false statements of which President Clinton is accused fall at the most marginal end of the least culpable genre of this continuum of offenses, and would never even be considered for prosecution in the routine cases involving an ordinary defendant.

  I went on to blast the committee for having never conducted hearings on the corrosive problems of police perjury—“testilying.”

  I warned that

  history will not be kind to this committee. History will not be kind to this Congress. I think this committee and this Congress will go down in history along with the Congress that improperly impeached Andrew Johnson for political reasons.

  Congressmen Hyde and Conyers then continued the questioning:

  REP. HYDE: I thank you, Professor Dershowitz. I don’t thank you for criticizing the motives, saying that we’re out to get the President. You haven’t the slightest idea of the agony that many of us go through over this question.

  We are concerned about the double standard. That may mean nothing to you, …

  MR. DERSHOWITZ: It means a great deal to me. [applause] When is the last time this committee has expressed concern about the rights of criminal defendants—[a chorus of “regular order” from committee members]…. It’s a sham.

  Then Congressman Hyde angrily began to lecture me about the rule of law:

  Does the rule of law—Have you been to Auschwitz? Do you see what happens when the rule of law doesn’t prevail?

  Now, I don’t leap from the Oval Office on a Saturday afternoon to Auschwitz, but there are similarities when the rule of law doesn’t obtain, or where you have one law for the powerful and one for the nonaristo-cratic.

  He did not give me an opportunity to respond to his absurd invocation of Auschwitz. But I did insist on responding when Congressman Barr contrasted me with the “real America” and how “the real America views these matters.”

  MR. DERSHOWITZ: Can I respond, thirty seconds, to what I perceive to have been a personal attack? First of all, whenever I hear the word “real Americans,” that sounds to me like a code word for racism—a code word for bigotry, a code word—

  REP. BARR: That’s absurd, Professor, you ought to be ashamed. That is the silliest thing I have ever heard—

  MR. DERSHOWITZ: When I hear you describe me as something other than a real American—shame on you. We may have a disagreement about the merits of these issues, but I would no more impugn your Americanism than you should impugn mine, sir.

  Not all the congressmen were angered by my aggressive testimony. Congressman Rogan summarized his views this way:

  I know that you raised a few hackles here with some of my colleagues with controversial comments, but I want you to know I personally found them to be very therapeutic, because up till now the only excuse I had for not having attended Harvard Law School was my grade point average. [laughter] So you’ve given me a little different perspective.

  Following my testimony before the congressional committee, I worked closely with the President’s legal team both on the impeachment and on the Starr investigation.

  One summer day, during the impeachment crisis, the White House switchboard tried unsuccessfully to reach me. (The White House has an unparalleled capacity to reach people. Once when I was flying on a commercial flight, the pilot came out and whispered in my ear, “The President is on the radio-phone.” I took the call in the cockpit.) I was on a beach, which had no cell phone service. When I got back to my house, there were seven frantic messages that the President needed to see me right away. He was staying a couple of miles away from our house, at the home of Dick Friedman in Edgartown. I jumped into my old Volvo and drove straight to Friedman’s house. The Secret Service man told me that the President was expecting me, but they had to search under the hood of my car. I started looking for the mechanism to open the hood. After a few minutes, the Secret Service man smiled and said, “Professor, you don’t know how to open up the hood on your own car, do you?” I responded by telling him the Jackie Mason joke about how when a non-Jew hears knocking under the hood of his car, he fixes and fixes. But when a Jew hears knocking under the hood of his car, he immediately trades it in for a new one.18 He laughed, and showed me where the lever was. I then drove down the road a short distance to where the President was waiting for me, having heard that I didn’t know how to open up the hood of my own car and laughingly wondering whether he should be seeking advice from such a klutz. But he continued to seek my advice until the matter was resolved.

  Shortly afterward, John Kennedy, Jr.—now the late son of the former president—called and asked me if I would contribute an article to his magazine, George. He asked me if I would describe the ten greatest legal blunders of the twentieth century. Here is what I described as the number one and two greatest blunders:

  By far the greatest legal blunder of the 20th Century was committed by President Clinton’s lawyer in the Paula Jones case, Robert Bennett.19

  I went on to describe that Bennett had never presented the President with the option of defaulting.

  The second greatest blunder was also committed by Bennett:

  After walking his client into the perjury trap, Bennett himself helped to spring it. Not content to let the President answer the opposing lawyers’ questions, Bennett did the unthinkable: he asked the President to affirm, under oath, the truth of Monica Lewinsky’s affidavit without having asked Lewinsky what she meant when she said she had not engaged in sexual relations with Clinton. Then, Bennett mischaracterized the affidavit by saying that the affidavit indicated that “there is absolutely no sex of any kind in any manner, shape or form.” Finally, in a “cover your ass” letter to the court, Bennett implicitly blamed his client for misleading the court, instead of forth-rightly acknowledging his own failure to find out what Lewinsky meant by sexual relations. These blunders [to me] give Bennett almost unique bragging rights as the only lawyer in American history who has helped his client get impeached.20

  At the very beginning of the Lewinsky matter, I had received a call from someone close to the White House giving me the phone number for where Monica was staying and urging me to call her. Perceiving a possible conflict of interest, I didn’t call. Several years later, I was approached by Monica’s mother at a Jewish event. She said, “I wish you had called Monica.” I often wonder, would the case have turned out dif
ferently if I had called and agreed to represent her?

  Remarkably, I have remained on friendly terms with both Bill Clinton and Kenneth Starr, despite criticizing the former’s sexual behavior and the latter’s prosecutorial tactics. Most celebrities I have encountered have extremely thin skins. They never forgive even small slights because they are accustomed to being universally adored. Both Clinton and Starr have thick skin. They accept criticism, especially when they know it is well intentioned. The same cannot be said about the next celebrity (and his lawyers) in whose case I played a major role.

  WOODY ALLEN VS. MIA FARROW

  In my article on the ten greatest legal blunders of the twentieth century,21 I also included the decision by Woody Allen’s lawyers to sue Mia Farrow for custody of several of her adopted children and the child they conceived together. I played an unusual role in that lawsuit. Both sides were focused heavily on the media: Woody was concerned that negative coverage, particularly of allegations involving sexual improprieties with a young girl, might ruin his career; Mia was concerned that any coverage might hurt her children. Every legal maneuver in the case was made with an eye (sometimes two) on the media.

  I first met Woody Allen when he was filming Manhattan.22 My introduction to him was a birthday present from a group of friends, one of whom knew Woody from his earlier film The Front.23 Woody agreed to meet me for lunch; he didn’t know he was my birthday present. When I told him, he immediately began to speculate as to whom he would want as a present: “Louis Armstrong,” he said, would be his first choice.

  “He’s dead,” I reminded him.

  “Exactly,” he replied. “Jimmy Hoffa would be my second choice.”

  “He’s missing,” I said.