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Burden of Proof

Arkansas Panel Recommends Disbarment of President Clinton

Aired May 23, 2000 - 12:30 p.m. ET



UNIDENTIFIED ATTORNEY: At any time, were you and Monica Lewinsky together alone in the Oval Office?


UNIDENTIFIED ATTORNEY: ... have an extramarital sexual affair with Monica Lewinsky.




MATTHEW GLAVIN, PRESIDENT, SOUTHEASTERN LEGAL FOUNDATION: Legal precedent in Arkansas mandates that and, in fact, the American Bar Association's guidelines for lawyer sanctions mandates that the president be disbarred for lying under oath and obstructing justice.



CLINTON: I knew when the timetable for this was moved up that I'd always be at a severe disadvantage because I will not personally involve myself in any of this until I'm no longer president. It's not right.


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: An Arkansas panel recommends disbarment of the president because of misleading testimony in the case of Jones versus Clinton.

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

COSSACK: Hello, and welcome to BURDEN OF PROOF. I'm in Atlanta today.

Yesterday in Little Rock, a disciplinary panel recommended that President Clinton be disbarred because of his answers in a deposition on January 17th, 1998, in reference to his relationship with Monica Lewinsky. When U.S. district judge Susan Webber Wright referred the case, she cited the president with giving, quote, "intentionally false testimony."

GRETA VAN SUSTEREN, CO-HOST: Now an Arkansas judge will hold a trial to determine if the president has committed misconduct, and if so, what sanctions could apply. This could be anything from a reprimand to losing his law license. The president's legal team is prepared to take the case all the way to the state supreme court, if necessary.


CLINTON: I will not personally involve myself in any of this until I'm no longer president. It's not right. The only reason I agreed even to appeal it is that my lawyers looked at all the precedents, and they said, "There's no way in the world, if they just treat you like everybody else has been treated, that this is even close to that kind of case."


COSSACK: Joining us today from Little Rock is law professor John DiPippa. On Capitol Hill, Republican Congressman Asa Hutchinson.

VAN SUSTEREN: In our studio, Devon Kerrigan (ph), former independent counsel Michael Zeldin and Cara Castantine (ph). And in the back row, Abigail Golden (ph), Jennifer Casning (ph) and John Wills (ph).

John, let me go first to you. Susan Webber Wright, the federal judge down there, found the president in civil contempt. What does that mean?

JOHN DIPIPPA, LAW PROFESSOR: Well, it means that he violated a rule of her court. Judges have the authority to discipline lawyers who misbehave in their court. And so when she found him in civil contempt, that's what she said. In addition, she referred it for disciplinary action by the committee.

VAN SUSTEREN: John, there was no -- when she found that, she sort of summarily found it based on what had preceded or gone before her. She didn't actually have a trial on this contempt, did she.

DIPIPPA: That's exactly right. She declined to hold a trial in view of the president's responsibilities. However, he opinion did suggest that if the president wanted to contest it, she'd be perfectly willing to have had a hearing.

COSSACK: Congressman Hutchinson, what do you believe was the impact of Judge Susan Webber Wright's referral on the committee that made this decision?

REP. ASA HUTCHINSON (R), ARKANSAS: Well, it's very significant. I mean, when you have a federal judge that personally witnesses something she believes constitutes an ethical violation and refers that to a disciplinary panel, it carries great weight. And this panel looked at it, and they rendered a judgment, which is a recommendation that will no go, as you pointed out, into circuit court in Arkansas. But the -- I think the findings of Judge Wright that was referred over probably is the significant factor in this case. And presumably, it will be given great weight, as well, in circuit court, whenever it's heard at that time.

VAN SUSTEREN: Michael, you're a former Justice Department prosecutor, former independent counsel. You've looked at the transcript, or you've looked at the testimony in the Paula Jones case. Did the president of the United States commit perjury?

MICHAEL ZELDIN, FORMER INDEPENDENT COUNSEL: No, not as a legal matter. What he did do was what the judge found him to do, which was to have given intentionally misleading -- she called it "false" -- testimony, and therefore the referral.

Remember, the thing to keep in mind is that he was not acting, though, as a lawyer in the courtroom. He was a witness, a litigant, and there may be a difference because, generally speaking, courts sanction lawyers most severely when they're acting as lawyers, not as litigants. You just have to think about lawyers in divorce proceedings, where they're the divorced parties and make statements which are not found to be true after the fact. They generally don't lose their law license over that.

VAN SUSTEREN: John, in light of what Michael says, that there was no perjury in the civil deposition but intentionally misleading statements -- let's assume what the federal judge said is accurate -- is that -- what kind of sanctions typically do lawyers get in the state of Arkansas for that type of conduct?

DIPIPPA: Well, it's hard to say, but as best we can tell, those lawyers tend to get reprimands for that kind of conduct. There have been four instances where public officials have made false statements either in court or under oath or falsified documents. And in each of those cases, the committee reprimanded the lawyer and did not recommend disbarment.

COSSACK: I just want to jump in here for a second and say -- make sure that we're all on the same page. I understand, Michael Zeldin, that you say he didn't commit perjury because that's a technical term. Do you agree, though, that he lied under oath?

ZELDIN: Well, I -- there is no such crime as lying under oath.

COSSACK: No, I'm not talking about a crime. I'm just -- we're not -- he's not charged with a crime. We're just simply talking about whether or not he should be penalized and what the appropriate penalty is. Did he lie under oath?

ZELDIN: Well, I think he -- I think it's more fair to say what the judge said, which was that he gave intentionally misleading or false testimony. You want to call that a lie, that's fine. I don't think it's a distinction that the law recognizes, Roger. And again, we're in a legal proceeding. You've got to deal with the legal terms that are before us.

VAN SUSTEREN: You know, Mike -- Roger, I agree with Michael. You know, it's so easy. You hear all these pundits throwing things around -- perjury. It has a specific legal definition -- lying -- I mean, you know, "intentionally misleading" -- you know, he was loose and slippery with the facts. Did he literally lie? Frankly, the only lie that I have seen in the civil deposition is when he said "I don't recall being alone" or something to that effect, with Monica Lewinsky. I don't believe that.

COSSACK: You know, Greta, I have to tell you something. I think your phrase of being "loose and slippery with the facts" is probably -- is almost worse than saying that he lied. It seems to me that I think that one of the problems here is that when we start -- you know, when we start really slicing it thin, is that we lose credibility.

VAN SUSTEREN: Yeah, but wait a second, Roger. You know, every single lawyer in this country ought to step forward and admit to one thing. We tell our clients at depositions, whether we like to admit it or not, "Listen to the question, and answer it literally." We don't say "volunteer the right answer." So when someone is asked, "Are you having an affair with X," if you're not currently having one with X, the proper answer, we tell our clients, is "No." We don't say to the client, "Why don't you ask the -- why don't you tell the lawyer to ask have you ever had an affair." That's the problem.

COSSACK: I don't think that's what happened -- I don't think that's what happened here, but I do agree with you that we tell -- we do tell our clients to listen literally to the questions.

Congressman Hutchinson, how would you describe what the president has been accused of and what he did?

HUTCHINSON: Well, first of all, it's my recollection from Judge Wright's referral that she did not reference "misleading," but she said that he provided false statements and that they were provided intentionally. And I think that that was clear from Judge Wright's referral.

What's at issue here is not simply whether there was a criminal act committed. This is not totally about President Clinton. This is about the legal profession and the integrity of it. We have ethical rules that the lawyers must live up to.

I spoke to a graduating class of lawyers this last weekend, and it's the integrity of the bar. And the supreme court, I believe, in Arkansas is trying to make sure that standard is enforced. The ethical violation is that a lawyer should not engage in acts of dishonesty, fraud or things that reflect or are prejudicial to the administration of justice. That is a standard. The committee found that it was serious misconduct.

And I think we have to wait and see whether they limited it to Judge Wright's referral or whether they expanded it and looked at anything else. And we will know that when the actual pleading is filed in court. We'll know the basis of the decision they made. VAN SUSTEREN: And before we go to break, let me read from the April 12th, 1999, Judge Wright's order, so that we have it specifically what she says. What she said was, "Simply put, the president's deposition testimony regarding whether he has ever engaged in sexual relations with Miss Lewinsky was intentionally false, and his statements regarding whether he had ever engaged in sexual relations with Miss Lewinsky likewise were intentionally false, notwithstanding tortured definitions and interpretations of the term `sexual relations.'"

We're going to go to break, and when we come back: The Arkansas supreme court Committee on Professional Conduct made yesterday's recommendation of disbarment. But where will the case go from here, and will it end up on the docket of the state supreme court? Stay with us.


After resigning from the presidency because of the Watergate scandal in 1974, Richard Nixon was disbarred by a New York court



COSSACK: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide Web. Just log onto We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. And if you miss that live show, the program is available on the site at any time via video on demand. You can also interact with our show and even join our chat room.


CLINTON: I promised myself and I promised the American people, when all the proceedings were over in Congress that I would take no further personal part. And I knew when the timetable for this was moved up that I'd always be at a severe disadvantage because I will not personally involve myself in any of this until I'm no longer president. It's not right.


VAN SUSTEREN: Yesterday in Little Rock, an advisory committee recommended that President Clinton be disbarred for his testimony about Monica Lewinsky in the Paula Jones sexual harassment lawsuit. Now an Arkansas judge must hold a trial. The president says his testimony was legally accurate and that his lawyers will take the case all the way to the state supreme court.

John, march me through the proceedings in Arkansas. A complaint has now been lodged in court. What happens next?

DIPIPPA: Actually, no complaint has been lodged. The committee believes it'll take about four to six weeks to put that complaint together and file it. From that point on, the president has a period of 30 days in which to respond. And then a case would be set for trial, assuming that all the pre-trial maneuvering is taken care of in the interim.

VAN SUSTEREN: Will there be a jury in a trial?

DIPIPPA: No, there will be no jury. This will be a trial before a judge, and it'll be just like every other civil trial before a judge.

VAN SUSTEREN: Which raises the question, how about subpoenas? Can the bar subpoena the president, who may not be the president at the time, to testify?

DIPIPPA: That's right. The executive director, who actually files the action and prosecutes it, has the authority, just like any other civil litigant, to subpoena witnesses to give testimony.

COSSACK: Congressman Hutchinson, oftentimes in civil trials, settlements are made before they actually go to trial. Is this the kind of activity or is this the kind of matter that perhaps the president's lawyers could get into an agreement or a discussion with the other side and come up with some sort of an agreed punishment?

HUTCHINSON: I'd be very doubtful because in this case, you've got the committee that's making the recommendation, and so the executive director, the prosecutor in the case, must follow that recommendation. There's been a recent case, actually, Les Hollingsworth (ph), that the committee recommended disbarment. It went to circuit court. The judge reduced the penalty to six months' suspension. It was appealed by the executive director to the Arkansas supreme court, where they actually reinstated a disbarment. And so the supreme court in that instance was tougher than the circuit judge. So there's a lot to be seen here, but I doubt that you'll see much negotiation. I think that time has passed.

VAN SUSTEREN: Congressman Hutchinson...

COSSACK: You mean that the judge only has one choice, he either has to -- he has to either follow the recommendations of the committee or -- or acquit, if you would, the president?

HUTCHINSON: No, in this -- he has rein to make a different decision on the penalty, as this other judge in the Les Hollingsworth case did. And either side can appeal to the supreme court. And so both the penalty, as well as the ethical violation will be at issue before the judge.

VAN SUSTEREN: I want to do a round robin with each of you three guests. Let me start first with you, Congressman Hutchinson. If you were the judge on the case, given the evidence and assuming it to be right, what would be your sanction?

HUTCHINSON: I believe consistent with what the supreme court has said in the past, the sanction of disbarment is appropriate. Certainly, it's sad, but it's important to the integrity of the law.


ZELDIN: I would, as I said last time we discussed this on the show, issue a reprimand. I think that the important things are, one, he's got a long history of public service, which mitigates the penalties under the Arkansas statute. Second, he was not acting as the lawyer in the case. Third, it was a civil case, and the judge found that the testimony was non-material to the case.

Given all of that, I think it would be outside of the mainstream of sentencing or sanctioning under the Arkansas regime to anything other than reprimand him.


DIPIPPA: I'm going to fall in the middle here. I think there is serious misconduct. However, it would only warrant a short suspension, for many of the reasons that Michael has noted. Also, it seems to me that there's a bad precedent if we allow politically motivated actions to bring down politicians who happen to be lawyers. It would add one more front in a fairly brutal politics today.

HUTCHINSON: Please let me add to that. I really think that's offensive here because you have the Arkansas committee -- these are Arkansans. It's a fellow -- it's a school teacher, it's fellow lawyers, who rendered this judgment. And many times you have a complainant that you like or don't like. The complainant in this case is irrelevant. It is the facts, the underlying facts, the referral from Judge Wright. And I think it's really disingenuous to start pointing fingers at who might have pushed this before the supreme court for them to consider it.

DIPIPPA: Well, I'm sorry if I offended the congressman, but it seems to me that there certainly should be a policy factor taken into account in assessing sanction. Nobody is disagreeing on this panel that the president should be disciplined. The question is the level of discipline. And certainly, the nature of the complaint should be taken into account in assessing that level.


COSSACK: Congressman, let me just jump in here for a second and take a break, and then we'll continue with you.

Up next: The case of Jones versus Clinton continues to haunt the Clinton presidency, even in its waning months.

Stay with us.


Q: Court reporter Denise McNamara is running for a position on the Republican National Committee. What is her professional claim to fame?

A: She was the person who took the dictation of President Clinton's deposition in the Paula Jones case. (END Q&A)


COSSACK: President Clinton's testimony in the Paula Jones case made history as it led to his impeachment and subsequent acquittal in the United States Senate. But now the president faces potential disbarment in his home state because of the January, 1998, deposition.

Well, Congressman Hutchinson, there seems to be some debate over exactly who I did cut off at the end of the last segment, but I'm going to return to you. I think you had something that you wanted to add.

HUTCHINSON: Well, someone made the point that somehow the motivation of the complainant on the ethical violations should make a difference in the punishment phase, and I just don't understand that concept because this is the independent body that makes a judgment on the law and whether there's an ethical violation. This is not just about the president. This is about the law and the integrity of it. And that's what they're trying to protect.

VAN SUSTEREN: And before Michael gets in, let me just say one thing about this whole proceeding, is that I believe, fundamentally, in any proceeding, whether it's Linda Tripp out in Maryland or the president here, is that the punishment has to fit the crime. And I think the prosecution against Linda Tripp should be dropped, and I think this should not be pursued.

I think the president of the United States has been punished for his wrongdoing, and I think that it's almost a disgrace that we're taking this one step further. He's not going to practice law. We don't need...

COSSACK: Where exactly...

VAN SUSTEREN: ... to protect the people...

COSSACK: What exact punishment did he get? He was impeached...

VAN SUSTEREN: I think he has...

COSSACK: ... and he was acquitted.

VAN SUSTEREN: I think he has the humiliation, the stain on his legacy. I don't think you can -- what do you gain, Roger, from this? What's your point, Roger?

COSSACK: It just seems to me that when you have a federal district court judge saying that you -- that what you testified to was intentionally false, for all lawyers in America...

VAN SUSTEREN: Isn't that enough? Isn't that enough, Roger?

COSSACK: It seems to me...

VAN SUSTEREN: How far do you want to do this?

COSSACK: ... something has to -- I don't think he should be disbarred, Greta, but...

VAN SUSTEREN: What do you think, Roger...

COSSACK: ... but I absolutely think that there should be some penalty. You just can't walk away...

VAN SUSTEREN: You don't think this man...

COSSACK: ... from it.

VAN SUSTEREN: You don't think the president of the United States has been penalized for his bad conduct? That's stunning to me after...


VAN SUSTEREN: ... every show we've done.

Michael, you wanted to add before...

COSSACK: I have to tell you, I believe -- and I think, Greta, that -- I think that I'm -- that most of the people at least have some agreement. I usually don't agree with you this much -- disagree with you this much. I just think something...

VAN SUSTEREN: You know...

COSSACK: ... has to be done, Greta.

VAN SUSTEREN: And you know what? I...

COSSACK: You can't walk away from this.

VAN SUSTEREN: And I will proudly stand alone on this, is I think the punishment should fit the crime, and I think we ought to all step back. The country has been through a terrible last couple of years. We've learned a lot. It's one credit of this country, there's been no bloodshed...

COSSACK: But you know, that's like...

VAN SUSTEREN: ... in this, but...

COSSACK: ... saying that the -- that the penalty -- the country's been -- the country's been penalized for what the country didn't do!

VAN SUSTEREN: And I'm saying -- I'm saying that the president's been penalized, and I say drop the Linda Tripp case. She has been penalized, as well.

Michael, I cut you off...

ZELDIN: Well, there...

VAN SUSTEREN: ... when I started my little rant.

ZELDIN: A couple of things. With respect to Asa Hutchinson's last comment -- I think, Congressman Hutchinson, what is relevant is to parse Judge Webber Wright's referral from the Southeast Legal Foundation's referral. They, I don't think, have any -- should have any standing in Arkansas to have filed this, and I think the committee should disregard them as complainants in this matter and leave it to Judge Wright's decision.

VAN SUSTEREN: But that's...

ZELDIN: And secondly...

VAN SUSTEREN: But that's almost irrelevant, Michael...

ZELDIN: No, it is relevant because...

VAN SUSTEREN: ... the complainant.

ZELDIN: ... it's going to define the scope of what the judge hears testimony on because hers is a very narrow question of the intentional false statement in her trial before her and not the broader issue of the Clinton presidency, which is really what's at issue in the Southeast referral.

And secondly, though, with respect to the punishment fitting the crime, what is most important is that the president be treated as any Arkansan with a public record, holding office, would be, and that he not be punished more severely than anybody else. And that that would require us to understand the norms of the state and analyze it in those terms. And we hear a lot of discussion about "the president deserves to be punished" more for who he was...

VAN SUSTEREN: But that begs the question...

ZELDIN: ... and the legal regime doesn't provide for that, Greta.

VAN SUSTEREN: But wait a second. I mean, how -- how far do we want to go with this? I mean, how much punishment, Michael, do you want to extract? What -- what is the point? What do you gain from any sanction? What do you gain from taking this one step further? And you have five seconds because that's all the time we have.

ZELDIN: There are two separate remedies. Licensing and criminal or civil sanctions are separate, and they -- they relate to different priorities in the legal system. I think you have to...

VAN SUSTEREN: And I say as we go out...

ZELDIN: ... do this...

VAN SUSTEREN: ... free Linda Tripp now! But that's all the time we have for today. Thanks to our guests, and thank you for watching. And join my co-host, Roger, for "TALKBACK LIVE" today.

COSSACK: And my guest will be Matthew Glavin, president of the organization that filed the request to have the president disbarred in Arkansas. And that's at 3:00 p.m. Eastern time, noon Pacific.

And tonight, be sure to tune into "LARRY KING LIVE" as my co- host, Greta Van Susteren, is going to put on the suspenders and fill in for Larry. That's at 9:00 p.m. Eastern time.

We'll be back tomorrow, together again, for another edition of BURDEN OF PROOF. We'll see you then.



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