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What Did Podesta Know and When Did He Know It?

Bruce Gottlieb
Posted Wednesday, Sept. 23, 1998, at 8:47 PM ET

President Clinton's videotaped testimony reveals not only what Starr and his prosecutors found, but what they wanted to find. For instance, Starr wanted to know whether Clinton told an aide, John Podesta, that he hadn't received oral sex from Monica Lewinsky. Clinton said he couldn't remember the conversation. What was Starr after? Is fibbing to your friends against the law?

Suppose Clinton had lied to Podesta. Clinton almost surely expected Podesta to testify before the grand jury (Clinton more or less admitted this). Starr's theory, then, is that Clinton wanted Podesta to transmit lies to the grand jury. Clinton is therefore guilty of obstructing justice, right?

It's not so simple. A lie only counts as obstruction of justice if the liar intends to mislead investigators or grand jurors. Starr's first hurdle is proving intent. Maybe Clinton lied because of embarrassment; maybe he lied to keep Podesta from resigning. Short of a confession--and Clinton's too smart for that--it's practically impossible to establish why exactly Clinton lied.

Starr's second hurdle is proving that Clinton's lies would in fact mislead the grand jury. Podesta's testimony that "Clinton told me X, Y, and Z," is only hearsay. Though hearsay is admissible in a grand jury proceeding, the law considers hearsay weak evidence. (For instance, hearsay is not admissible in an ordinary trial.) A reasonable jury shouldn't conclude that X,Y, and Z are true just because Clinton says so to Podesta. (Especially when grand jurors are investigating whether Clinton is a liar.) So the law expects grand jurors to see past Clinton's lies--which means his lies aren't misleading at all.

In sum, even if Clinton had spilled the beans during his testimony, it's unlikely Starr could have made an obstruction of justice charge stick. The law doesn't really mind if you lie to your friends.

Congress, on the other hand, is not bound by federal law in impeachment proceedings. Nor, of course, must John Podesta smile on Clinton's lies. NBC's Tim Russert asked Podesta on Aug. 20 if he'd ever considered resignation upon learning he'd been lied to. Podesta conspicuously sidestepped the question, saying only "in the context of this I think that my duty is to remain with the president and to work with him."

Next question?

Explainer thanks Professor Miguel Mendez of Stanford Law School.

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Bruce Gottlieb is a law student and a former Slate staff writer.
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