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P O L I T I C A L N O T E B O O K
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She's five feet tall, weighs 110 pounds, and she's knocked the Presidency for a loop over an alleged encounter in an unclassy hotel in Little Rock, Arkansas. If she didn't exist, Monica Lewinsky wouldn't exist now as the fulcrum of Independent Prosecutor Ken Starr's attempt to pin Bill Clinton to the mat.
She's run over the nation like a train and, despite being temporarily derailed by Judge Wright's ruling throwing out her case, she (and her spokesmen) continue to bear down upon us while she pursues an appeal she could win. Picking ourselves up and dusting ourselves off, let's look back to see what hit us.
Is the issue in question whether Monica Lewinsky had an affair with President Clinton? No, it is whether President Clinton may have discriminated against Paula Jones because of her alleged refusal to perform sexual acts.
The legal system does not work without the concept of materiality. If it turns out Clinton lied about having an affair with Monica, in most instances in a sane world this lie would have to be material to be statutorily considered perjury.
The term "material" means that the evidence would influence the jury (decision on case and damages) or the judge (decision to hear or throw out case, discovery rulings). If the evidence could have no bearing on any decisions, then one must conclude that the false statements were immaterial.
The tossing out of the Jones case and the initial exclusion of the evidence by Judge Wright is a clear indication that such statements - even if false - were not material. This should preclude a perjury charge in and of itself.
But we're not in a sane world in regard to the Jones matter. The case has exploded to unrecognizable proportions. Let's examine how this happened.
As Lars-Erik Nelson pointed out this year in the New Republic, Paula Jones' civil suit asked for damages of $525,000 if the trial proceeded and every witness - pro and con - was called to publicly testify to every detail, both lurid and exculpatory, dragging the President through mud in the process. But Ms. Jones asked for a whopping $2 million to settle the case and avoid such a spectacle.
Usually a settlement figure is lower than the possible figure a jury might award or the plaintiff's demand for damages, yet in this case it was much higher.
"What she is doing is tantamount to a shakedown," said Michael Zeldin, a partner at Price Waterhouse and no friend of Bill Clinton.
"It sounds like blackmail to me," said Greta Van Susteren of CNN, a former law professor. "The most she could collect from a default judgment, assuming she could prove her case, would be $525,000. So how can she demand $2 million as a settlement?"
This was just on a monetary level, which was serious enough. What about the "discovery phase"? When Jones' attorneys dredged up several "Clinton women" such as Monica Lewinsky, Kathleen Willey and Dolly Kyle Browning, was extortion involved in achieving a favorable discovery ruling?
Paula Jones and her attorneys based their discovery requests relating to Monica Lewinsky and others on the contention that Jones suffered tangible job damages from her refusal to have sexual relations with the President. The rationale for searching out other "Clinton women" was to try to show a "pattern" of rewards or damages in exchange for sexual favors or refusal of sexual favors.
How to prove Jones and her attorneys were intent upon extortion? The legal basis for claiming extortion would have to be a showing that the discovery requests were fraudulent and therefore constituted an illegal act.
The ruling of Judge Wright lends at least some support to this contention. She stated in her decision that Ms. Jones and her attorneys had made representations in their discovery requests that Jones suffered employment damages and that this was why Judge Wright had granted Jones and her attorneys several favorable discovery rulings.
That opinion concluded, however, after months of salacious media publicity, that there was nothing to support the contention that Paula Jones had any claim of employment damages - damages, that is, that had been the basis for Judge Wright's broadening of discovery in the first place.
Willful Lies?
The issue of whether an employee actually suffered damages normally would be a matter that is stipulated (agreed upon) in cases. Typically the employer will claim that any damages (denial of promotions or terminations) did not result from sexual harassment. The employee will claim that these damages (such as denial of promotion, termination or being forced out) were a result of the alleged sexual harassment.
The fact that damages occurred is usually agreed upon either way. This leaves in dispute how the damages arose -- whether, for example, the employee was entitled to a promotion and denied such promotion for refusing sexual favors. This would involve reviewing the employee's work record and determining whether sexual harassment could have been the reason why the promotion was denied.
It is not very difficult to determine whether there have been potential employment damages. This is normally a straight-forward matter. False representations in this area are certainly a matter that should be reviewed with respect to the possibility that extortion and malice were the primary motivations not only for the initiation of the Paula Jones lawsuit but also for the broadening of scope in a "discovery" phase. The Jones attorneys had the burden of proving that Governor Clinton had anything to do with what happened to Paula Jones regarding her employment with the state. This would mean that her supervisor and those above her would have had to conspire with Governor Clinton to have committed this act.
The fact that the plaintiffs could not offer any evidence of damages, much less any evidence that President Clinton had interfered with her employment, are fairly clear indications that the plaintiff's lawyers really were not interested in establishing a genuine case related to discrimination based on sexual harassment.
The questions relating to extortion are: Did Paula Jones and her attorneys make false statements regarding tangible job damages deliberately to obtain discovery relating to women that Clinton may or may not have had relations with? (Tangible job damages were the only basis for discovery in this area).
The best evidence of this are excerpts from the sworn deposition of Paula Jones that was submitted in the brief by Robert Bennett. Paula is very vague on offering facts that directly contradict her complaint. Among the points that contradict her complaint are the following:
Pressing Questions
The questions one must ask, then, are: How did Jones and her attorneys, based on these responses in her sworn deposition, formulate a civil complaint based on tangible job damages? What would an attorney practicing in employment litigation tell a potential litigant who made the statements that Paula Jones made in her deposition?
It is reasonable to assume that such an attorney would tell her she had no basis to claim employment damages. Yet, the facts as known from her sworn deposition were known to Paula and her attorneys, placing them in a position of willful knowledge of facts misrepresented in her civil complaint.
Sixteen months passed between the alleged incident with Governor Clinton and her alleged move to a dead-end job. Judge Wright ruled that this was a transfer in duties and was not a demotion. Governor Clinton never signed or approved her evaluations, meaning that he had very limited contact with her on the job and was not in a position to interfere tangibly with her employment. These facts were known to Jones and her attorneys yet they misrepresented these facts in their civil complaint upon which they based their petition to go to trial.
An Escalating Complaint
Paula Jones described the encounter with Clinton in much more threatening terms in her sworn deposition than she stated in her original -- detailed -- civil complaint. She swore in her depo that Governor Clinton "tried to touch her pelvic area," whereas in her sworn complaint, previously, she alleged that he had "rubbed her legs towards the hem of her culottes." That's not much higher than her knees.
By alleging that Clinton didn't simply harass Paula Jones, but tried to sexually assault her as well, her lawyers laid the groundwork for an argument that Judge Wright violated Rule 415 when she excluded evidence of Clinton's alleged indiscretions with Monica Lewinsky.
In their arguments on February 5, Jones' lawyers stated, "If the allegations inherent in the Monica evidence are true, the Defendant Clinton sexually assaulted, sexually harassed, and/or committed oral sex with a 21-year-old intern in or about the Oval Office and rewarded her with two paying federal jobs."
In the New Republic of March 16 this year, Jeffrey Rosen points out (in addition to arguing the implausibly that President Clinton sexually assaulted Monica Lewinsky) that Rule 415 does not apply in the Paula Jones case because the amendments to the Federal Rules of Evidence apply only to cases filed after July 1, 1994. Her case was filed before that date.
We should also note that the bogus rape claim raised by Jones' chief spokesman, John Whitehead, as well as the alleged assault on the former Miss America raised by her attorneys (assaults denied by both women), might only have been raised if there was a contention that the incident was sexual assault. Conveniently Paula Jones changed her testimony to re-characterize the incident with Clinton in the hotel room as more menacing. Conveniently, this justified pursuit of other supposed instances of "sexual assault" with other women.
The questions are these:
Why would Paula Jones tell a different story now?
Did her attorneys interview her and realize she had no basis for a complaint based on employment damages and that she would have to make the incident appear to be "sexual assault" to have any chance under the Outrage Law in Arkansas? As Rosen's article in the New Republic points out, was the question of "sexual assault" raised so that Paula Jones' attorneys could review President Clinton's sexual history with other women at trial?
Finally, was the question of "sexual assault" raised and the stories of "other women" presented - often fabricated or exaggerated -- so that they could be floated pre-trial into the news media? Was there any care by Jones and her attorneys that there ever be a trial at all so long as a trial was pending as long as possible --- with the accompanying media frenzy dogging Clinton every day?
We see a pattern along these lines progressing even now, without a specific trial coming up but an appeal pending which gives rise to "hope" and serves the strategy of prolongation just as well. On April 20 on CNBC and April 29 on CNN, John Whitehead, speaking for Jones, escalated the "sexual assault" rhetoric further by stating that "Clinton touched her genitals" -- not her pelvic area, her genitals -- when this was nowhere alleged in her civil complaint or even in her sworn de-position.
Whitehead claimed on television that Paula Jones didn't raise the issue of Governor Clinton "touching the pelvic area" or "touching her genitals" because "it is characteristic of a complainant not to list all of the charges in the specific complaint." This is a absurd and misleading explanation (i.e., a lie on top of a lie) since failure to claim items in the complaint would preclude a specific remedy for them.
Based on Paula Jones' deposition, it certainly appears possible that the misrepresentation in the discovery requests by Jones and her attorneys was either willful or reckless, perhaps engineered to bring about a favorable discovery ruling which would open up "other women." Into this trap would fall Monica Lewinsky and the President.
Jones and Starr: Joint Effort?
It has been acknowledged by the Office of Independent Counsel that the investigators were seeking out women who'd had affairs with Bill Clinton. The reason they gave was that this was somehow related to the investigation into Whitewater. They were even said to be tracking down old and discredited rumors about illegitimate children.
In light of subsequent events, can we believe the explanation of Ken Starr that he wanted to know if Clinton had ever discussed Whitewater matters with these women? Was this merely a tactic to cross over and intrude into the Paula Jones case? Starr had already communicated extensively with Jones' lawyers in 1994 before Starr was appointed independent counsel. He had even offered to prepare (on behalf of the Scaife-funded Independent Women's Forum) an amicus brief in the Jones Supreme Court appeal.
When Monica Lewinsky was interrogated by Starr's prosecutors, they reportedly told her that they had her sworn affidavit in relation to the Jones case. All testimony related to the Jones case was under a gag order. How did Starr's office get her affidavit? Did they get it from Paula Jones' attorneys with whom Starr's staff had a proven close association?
The turning point in the Starr investigation (chasing down Clinton's alleged affairs in connection, supposedly, with Whitewater) coincided neatly with the initiation of discovery in the Jones case (chasing down Clinton's alleged affairs). Was Starr's office in effect doing research on behalf of Jones' lawyers and (via Linda Tripp) vice versa?
What is the possibility that Ken Starr could have come across relevant information relating to Whitewater from this investigative technique? Was Kenneth Starr trying to see if he could intimidate (blackmail) one of these women (perhaps one who was married or in a relationship she did not want to upset) to testify against President Clinton for the Paula Jones trial? Was there intent by Jones and her attorneys to have women such as Monica Lewinsky, the former Miss America, and other married women (at least one of whom was very wealthy) to prevail on President Clinton to settle so that their reputations would not be sullied?
Considering that the matter of Monica Lewinsky is now the central pivot of Starr's investigation of Clinton and considering that Paula Jones and her attorneys had no legitimate reason to seek the information about other women which turned up Lewinsky in the first place, could Ken Starr's resulting current focus of investigation be not a mere errant tangent (the famous "tin ear" theory) but the consequence of a concerted alliance between the Jones and Starr teams, i.e., a conspiracy of malice, extortion and blackmail aimed at the President?
"Sexual Aversion"?
No review of the Jones case would be complete without mention of the sexual aversion claim made six-and-a-half years after the incident. This is another item that appears to be contradicted in Jones' sworn testimony. In her deposition, the question is asked:
Q. Are you making any claims in this case that either Danny Ferguson or Governor Clinton are responsible for any damages as it may relate to your marriage?
A. No.
Doesn't this response preclude a sexual aversion claim from being made?
Finally, should the Jones case have been allowed to proceed to trial while Clinton was still in office? Vincent Bugliosi (criminal prosecutor of Charles Manson, author of "Helter Skelter") presents a compelling argument that the Supreme Court made a grave mistake in allowing the Paula Jones case to proceed while President Clinton was still in office.
His 1998 book "No Island of Sanity" reveals that Clinton's attorney Robert Bennett erred by making a "separation of powers" argument instead of arguing for a "balance of interests" between the right of Ms. Jones to bring her civil case immediately to trial and the rights of 260 American citizens to have the full energy, presence of mind and attention of their duly elected President.
However, even if Bennett blew it, Bugliosi asserts, the Court itself should have realized that the situation of conflict between two opposing rights called for a "balance of interests" approach. Yet nowhere in Judge Stephens' opinion was "balance of interests" even mentioned. Justice, in this case, was truly blind in the worst possible sense of the term.
Bugliosi notes that the issue before the Supreme Court was whether or not a sitting President could be forced to go to trial during his term of office to defend himself in a civil (not criminal) action arising out of alleged misconduct unrelated to his official duties.
The President asked for postponement, not dismissal of the case. Contrary to news media and pundit accounts, he was not claiming to be "above the law," that is, immune from the legal process. The issue was not whether Paula Jones should be able to have her day in court, but when.
Yet the news media repeatedly echoed a pompous and erroneous idea regarding the President's appeal for postponement by saying that "No citizen - not even a sitting President - is above the law" (New York Times editorial, Jan. 13, 1997), urging the Court to deny the President's request for postponement.
Despite their supposed insulation from public opinion and despite the demagogic nature of these statements (Bugliosi calls it "simplistic and platitudinous reasoning"), if we go by the Court's ultimate conclusions, it is possible that this bogus but subliminal pressure by the nation's pre-eminent newspapers (and many other media outlets, plus public opinion polls that followed these sentiments like good children) may have affected the thinking of the Court.
In case after case, the Supreme Court has addressed situations involving public officials such as legislators, judges, prosecutors and members of the armed forces by saying that immunity (not postponement as Clinton was asking in the Jones case, but immunity entirely) was needed. This conclusion was achieved by balancing the public interest against the private interest and "granting immunity for the benefit of the public" so as not to "disserve the broader public interest." Yet the Supreme Court judges could not see their way clear to find the same argument (the best argument, as it was their responsibility to search out) for the President in this case.
Bamboozled in Broad Daylight
What does the Jones case tell us? The Jones-Lewinsky-Starr imbroglio demonstrates how vulnerable our media-political system is to simple manipulation by fraud, misinformation, and disingenuous punditry. This is not a vulnerability that Richard Mellon Scaife made to happen, although he takes advantage of it. It's bigger and deeper than mere masters of manipulation. It goes to how it happens and who lets it happen.
The Jones case with its probable extortion may prove to be one of the most masterful manipulations in modern history. We allowed it to happen by not keeping our eyes peeled for railroad jobs in our media-driven political system.
Making matters worse, we haven't insisted that the news media ask incisive, obvious questions - or even read a lousy deposition and perform the basic analysis you see here - to keep us less vulnerable to being bamboozled by a bunch of highly political lawyers and one sad girl.
So, heads up. With her appeal, the train could still be comin' back down these tracks.
Material in the section "Jones and Starr: A Joint Effort?" was developed in collaboration with Carol Cantor. Jane W. Prettyman is editor of The Real News Page. She is a former editor at Esquire magazine.
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