Pennsylvania’s perjury statute, 18 Pa.C.S. 4902, is typical of perjury laws throughout the United States. The statute codifies the early common law of perjury. A person commits perjury when he: (1) makes a false statement; (2) that is material; (3) in an official proceeding; (4) under oath; and (5) which he believes to be false.
A false statement is simply a statement that is untrue at the time it is made.
A false statement is material when it could have affected the course or outcome of the proceeding. The statement must be relevant to proving or disproving an element of the case. A false statement may be directly about an element of the case or may prove such an element indirectly.
The material false statement must be made during an official proceeding. That includes not only testimony at trial, but also statements made at a deposition, on an affidavit, during grand jury proceedings, or any other sworn statement made to a governmental body.
The material false statement at an official proceeding must also be under oath to be considered perjury. During a trial the oath occurs when an officer of the court has the witness “sworn in” with right hand raised or a hand on the Bible. A similar oath is given before a deposition by the court reporter. A Notary Public administers the oath to the signatory of an affidavit.
The final element is that the witness must believe the statement to be false. Thus, a mistake, misunderstanding, lapse in memory, delusion, or otherwise inadvertent misstatement is not perjury. A witness cannot commit perjury unless the witness knows the statement to be false at the time it was made.
When these elements are applied to today’s most famous perjury allegations, there is no doubt that the statement which we will assume to be, “I did not have sex with that woman ” was made at an official proceeding (a deposition) and under oath (administered by the court reporter). Questions arise as to whether the statement was false, whether President Clinton believed the statement to be false, and whether the statement was material to the Paula Jones case.
How can there be a question as to whether Mr. Clinton’s statement was false and whether he knew it to be false when he admitted on national television that he had an “improper relationship” with Monica Lewinsky? Because the Judge in the Paula Jones case had earlier issued an order defining “sex”. President Clinton and his counsel believed that the definition did not include the relationship he had with Monica Lewinsky; and thus the President’s statement, which we are assuming to be “I did not have sex with that woman” when read along with the Judge’s definition of sex may actually be “I did not have sex within the Judge’s limited definition of sex with that woman.” That is apparently a true (albeit tortured) statement. Further, if Mr. Clinton believed that his statement was true because it fell within the Judge’s limited definition, an element of perjury is missing. For those of you who are wary of this “legalistic” reasoning, keep in mind that President Clinton’s lawyers apparently asked for the Judge to define sex in such a manner to avoid an extensive and politically motivated inquiry into the President’s personal life.
The most difficult hurdle Kenneth Starr has to overcome is showing that the President’s testimony was material to the Paula Jones case. The question is whether the fact that the President had an affair with Ms. Lewinsky could have affected the outcome of the case. If not, it is not material. It is unlikely that the affair was material to the case, and any evidence relating to it would have been excluded if there had been a trial. The Jones case was about quid pro quo sexual harassment, which is discrimination on the basis of gender prohibited by Title VII of the Civil Rights Act. This is proved by showing that sexual activity was required as a condition of employment and that the employee gave in to improper demands in order to continue employment or suffered in some manner for refusal. Essentially, whether the President had a consenting affair with Monica Lewinsky many years after the single incident Jones alleges seems to have no legal bearing on whether Jones was approached by Clinton or whether Jones suffered in her employment because she refused such favors.
In summary, at least one and as many as three elements of Mr. Starr’s perjury case against the President may be missing. Stay tuned!