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Burden of Proof
Arkansas Complaint Aims to Disbar President ClintonAired July 6, 2000 - 12:30 p.m. ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
(BEGIN VIDEO CLIP, AUGUST 17, 1998)
UNIDENTIFIED MALE: At any time, were you and Monica Lewinsky together alone in the Oval Office?
WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: I don't recall.
UNIDENTIFIED MALE: Did you have an extramarital, sexual affair with Monica Lewinsky?
As you know, in a deposition in January, I was asked questions about my relationship with Monica Lewinsky. While my answers were legally accurate, I did not volunteer information.
(END VIDEO CLIP)
(BEGIN VIDEO CLIP)
MATTHEW GLAVIN, SOUTHEASTERN LEGAL FOUNDATION: It sends a very strong message to lawyers all across America that lawyers, indeed, will discipline themselves, even when the attorney being disciplined is the president of the United States of America.
(END VIDEO CLIP)
GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: Arkansas Supreme Court committee files a complaint to disbar President Clinton. Will the commander-in-chief lose his law license?
ANNOUNCER: This is BURDEN OF PROOF, with Roger Cossack and Greta Van Susteren.
VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. Roger is off today.
An Arkansas ethics committee recently took a step towards stripping President Clinton of his law license. It filed a complaint that charges President Clinton gave false, misleading and evasive answers during his sworn deposition with Paula Jones' lawyers in January of 1998. It also says that Clinton acknowledged later that year that he mislead people about his relationship with White House intern Monica Lewinsky.
(BEGIN VIDEO CLIP)
CLINTON: I say to you now that at no time did I ask anyone to lie, to hide or destroy evidence, or to take any other unlawful action. I know that my public comments and my silence about this matter gave a false impression. I misled people.
(END VIDEO CLIP)
VAN SUSTEREN: The committee concludes that Clinton's misconduct damages the legal profession. Now the Arkansas Supreme Court must find an impartial judge to hear the case.
Joining us today from Little Rock is University of Arkansas law professor John DiPippa. And here in Washington, Michelle Walls (ph); former Watergate attorney Richard Ben-Veniste; and legal ethics professor Robert Destro. And in our back row, Audrey Decker (ph), Matt Stowe (ph) and Craig Cronheim (ph).
And also joining us from Washington is CNN national correspondent Bob Franken.
Bob Franken, first to you. What is with the job search, the judge search in Arkansas to find a judge to hear this case?
BOB FRANKEN, CNN NATIONAL CORRESPONDENT: Well, you raised the issue that's really the big problem right now. The routine would be that it would go to the Pulaski County Circuit Court, which is, in effect, their -- it's called a variety of things in different states. In Washington, it would probably be called superior court. And one of the seven judges would be randomly assigned by a computer and he would, or she would, schedule the hearing on this.
Well, the problem is that, in Arkansas -- and I can say this because I'm formerly from Arkansas -- everybody knows everybody else, and so the judges are recusing themselves left and right. They're down to two, I believe, of the seven that are left on the court. And if they aren't able to find one who can take the case, they'll move to the next level. There's some question exactly which of the next courts would take over in Arkansas. But it's going to be a real struggle.
There's also a possibility that they could bring in somebody from the outside. They're really sort of winging it right here because, of course, they've never had a disbarment proceeding against the president of the United States.
So that's where it stands now. The complaint that was filed against President Clinton pretty much reflects the original sanctions that were applied by federal Judge Susan Webber Wright, who presided over the deposition in the Paula Jones Case. Of course, President Clinton paid a rather stiff fine after all of that, and now the beat goes on with the possibility that he could become the first president to be disbarred while he was a sitting president of the United States. VAN SUSTEREN: John DiPippa, tell me about the current judge. We're now on judge number five; four have passed. It's a Republican judge named Leon Johnson. Who appointed him and what can you tell me about him?
JOHN DIPIPPA, LAW PROFESSOR: Well, he was just appointed last month to fill out the unexpired term of a judge who had been removed from office in May. Now, Governor Huckabee, who is a Republican, appointed Mr. Johnson, and he will serve until the end of this year, December 31, without any ability to run for reelection.
VAN SUSTEREN: Now, you say he replaced him, he replaced Judge Morris Thompson. What happened to Judge Thompson that he was removed?
DIPIPPA: Judge Thompson was removed for a number of reasons. He practiced law on the bench, received fees while he was still -- while he was on the bench. He also wrote somewhere in the neighborhood of 50 or 60 hot checks and contested that all the way up to the Supreme Court. The Supreme Court upheld his removal in May, at which time Judge Johnson was appointed.
VAN SUSTEREN: Richard, four judge have passed because they are friendly to the president. Number five was appointed by the current governor, who has been a critic of President Clinic -- President Clinton. What do you make of this judge shopping?
RICHARD BEN-VENISTE, FORMER WATERGATE ATTORNEY: Well, before you got to the judge shopping, the committee itself had a number of recusals -- I think six -- also because of connection to President Clinton. So we're left with those people who are at least politically adversaries of the president left to judge him in this matter. It seems rather incredible that it set up this way.
And I can't help asking, what happened to the judge with the hot checks? Is he being disbarred? Here's somebody's who's a judge and doing things inappropriate. It seems to me the whole issue of disbarment for President Clinton's conduct as a litigant, as a party, not as a lawyer, is grossly inappropriate.
VAN SUSTEREN: Bob Destro, we've -- in any proceeding, you've got to find someone who at least has -- doesn't come to the table with some bias. Extraordinarily difficult here. We saw all the criticism of Ken Starr because he came to the table with some baggage. How do you -- how does one go about -- how does the state find an impartial jurist in this instance?
ROBERT DESTRO, LEGAL ETHICS PROFESSOR: Well, it's very difficult. I mean, not only does the process have to be fair, it's got to be perceived to be fair. I mean, I think that the idea that everyone who has recused is in favor of President Clinton and everybody who has stayed in is against him, I'm not sure that the evidence would bear that out. It's just like when you pick a jury, you know, you say, can you -- on the evidence, can you find an impartial verdict? And I think that's really the quest we have here.
VAN SUSTEREN: John, is it possible in the state of Arkansas, is there a provision, to appoint what would be essentially a special master, go outside the appointed judge by -- either appointed by then- Governor Clinton or now his critic, Governor Huckabee? Can you go outside and appoint a special master?
DIPIPPA: Yes, you can do that. And, in fact, that happened several times in the 1980s. The attorney general, Steve Clark, appealed a criminal conviction to the Arkansas Supreme Court. The entire bench recused and Governor Clinton, at that time, appointed a new bench. So it's quite possible. The first step here would be for the Supreme Court of Arkansas to find somebody and appoint a special judge in this instance.
VAN SUSTEREN: Bob, assuming that this job search is successful and that they do find a judge to consider this, do we have any indication of the calendar in Arkansas when this case could proceed to a trial?
FRANKEN: Well, there -- they would probably be set up, to use the legal terminology, forthwith. But there could be briefs that need to be file, there could be a number of delaying tactics. The consensus is that this probably will not be adjudicated until after Bill Clinton leaves office, but that's only about five and a half months away.
VAN SUSTEREN: All right, Bob Franken, thanks for joining us.
We're going to take a break. And up next, how do you defend the president at a bar proceeding? Stay with us.
(BEGIN LEGAL BRIEF)
A man convicted of rape and imprisoned for seven years was freed from prison Wednesday after DNA testing showed that he could not have been the attacker. This marks the first time a person in Kentucky has been released from prison based on DNA evidence.
(END LEGAL BRIEF)
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The Arkansas Supreme Court committee that's trying to take away President Clinton's law license bases its complaint on an order from judge Susan Webber Wright. She found Clinton in contempt for intentionally giving false testimony in the Jones case.
John, before -- let me ask you, if this does go to a trial, is it a judge trial or is it a jury trial?
DIPIPPA: No, this is a judge trial, which is why the judges are being so careful, I think, because not only are they going to preside, but they have to make the decision as well.
VAN SUSTEREN: And what is the burden of proof, John?
DIPIPPA: The burden is the standard civil burden of preponderance of the evidence. And it's just like any other civil case.
VAN SUSTEREN: Richard, how would you begin defending the president of the United States in this case?
BEN-VENISTE: Well, I would look at the conduct itself, whether it was harmful. Normally, disbarment is reserved for lawyers who take advantage of their trusted position as lawyers; for example, embezzling money from clients, raiding a trust account -- as I understand was the case recently with the GOP state chairman.
VAN SUSTEREN: And what happened to him? John, are you aware of this case?
DIPIPPA: Yes, that's Mr. Leslie, I believe, and he received a reprimand.
BEN-VENISTE: So, a reprimand for stealing money from a widow; I'm not suggesting that that's an appropriate remedy. But first of all, you've got to put it in the context of precedent within the state. President Clinton's conduct was conduct which was clearly designed to mislead, to protect himself against disclosure of this information, which was largely irrelevant to the lawsuit. He did no harm by this representation in the lawsuit, because it was a perjury trap.
All of the parties, other than president Clinton, knew about the taping of Monica Lewinsky. So, they were there to set him up. Ken Starr was licking his chops, hoping that the president would deny the involvement. So he did no actual harm. Was it appropriate conduct -- no. Was it the president's finest hour -- certainly not. But I would defend on the base of the impact of the conduct, whether or not the answers were literally true or not, whether there was an argument that could be made in that regard.
VAN SUSTEREN: Bob, let me talk about one of the issues Richard raises as the proportionality issue. When you discipline a lawyer, or seek to do one, do you look at like conduct? I mean, for instance, does the GOP -- who apparently, at least according to Richard and John took money from a client -- is that something you would use in terms of evaluating the right penalty?
DESTRO: Well, if I were the judge, I would take it into consideration. But I would also -- the judge is responsible, as judge Wright was, for making sure of the integrity of the judicial proceeding. And so when she fined President Clinton, she found that his conduct was inappropriate under the circumstances. So I think that you are also not only looking at the proportionality, you also want to look at whether or not -- what kind of a standard you want to have for your state.
VAN SUSTEREN: John, does it -- I mean, Bob, does it make a difference to you? I mean, should he get a harsher penalty because he's the president of the United States, or should he get the same penalty as someone similarly situated?
DESTRO: Well, I think that he should get the same penalty as someone similarly situated. But I think that the penalties for lying in judicial proceedings are far too low. I think that more attorneys -- more -- there have been prosecutors and defense attorneys who have lied in the process and perverted the process. And I think the penalties ought to be higher.
VAN SUSTEREN: John, take me behind the scene. What are the lawyers saying in Arkansas. I mean, what are they saying when they gather about what they think should happen?
DIPIPPA: Well, I think it's pretty much split the way you would expect anywhere else in the country. And it's very hard to be in the middle here. It seems to me that you are either for no discipline at all, or for disbarment. I tend to fall in the middle here and urge some form of suspension because the president is unique. What really complicates this is that the Arkansas Supreme Court has held, in a number of cases, that courts should not look to other discipline cases because each case should be approached on its unique set of facts.
VAN SUSTEREN: Richard, because he's the president of the United States, does that make it any different, do you think, when you evaluate what is appropriate?
BEN-VENISTE: Well, I think there is something to be said for that. And I am in the -- I guess -- in the middle as well. I think the Arkansas Bar should act in some what about this conduct. But the question of whether or not disbarment is excessive, I think has been answered by many, many people in the country. And I think to take the jump that it would mean to hold President Clinton to the standard of disbarment for this conduct would in fact be excessive.
VAN SUSTEREN: Bob, let's talk about proof. Is it enough that Judge Susan Webber Wright issued this order, or do you that think she's got to come in court and testify, or do they have to present witnesses to make its case?
DESTRO: Well, I think that there is a burden of proof. You've got to bring in the witnesses, you've got to bring in the evidence, and the judge has got to find, effect, de neuvo (ph)...
VAN SUSTEREN: Independently.
DESTRO: ... from the beginning -- independently, that this meets the standard.
VAN SUSTEREN: So even though Judge Susan Webber Wright concluded that this was contemptuous conduct, if another judge looking at it decides it isn't, you could have a different result?
DESTRO: You could.
VAN SUSTEREN: John, do you think there have to be witnesses in this case?
DIPIPPA: I'm not sure. I think the committee is really aiming not to have witnesses. They base their complaint entirely on Judge Wright's referral, and made a point in their complaint to indicate that the president had an opportunity to appeal and have a hearing, but he never did.
VAN SUSTEREN: But didn't Judge Susan Webber Wright, though, put a little bit of a land mine in a footnote in her order, suggesting that if you do appeal, we're going to open this up, and boy, you could get it twice as bad?
DIPIPPA: Oh, absolutely. But the fact is that the president did not go for a hearing or appeal. And I believe the committee will try to make Judge Wright's referral the basis as -- for the complaint and use collateral estoppel to prevent the president from re-litigating any of the facts.
VAN SUSTEREN: All right, we're going to take a break. We will be right back. Stay with us.
Q: How many presidents of the United States, including Clinton, were lawyers?
VAN SUSTEREN: Clinton attorney David Kendall says he will vigorously defend the president against an Arkansas disbarment complaint. The White House legal team will be going over some familiar territory in order to save Clinton's legacy. And just as a note, Judge Johnson, who is currently looking at the case. see whether or not he will handle it, I do not know that he is a Republican, he has been appointed by a Republican governor and, in fact, has voted in Democratic primaries.
John, let me go back to the trial. Is it possible there will be cameras in this proceeding, is it public?
DIPIPPA: It can be public. I don't believe it will be. It's within the judge's discretion, but there's a possibility that there will be cameras.
VAN SUSTEREN: So they don't mix this. When you say public, I mean, it isn't a question whether there will be cameras or not, the public will be able to go, is one issue. DIPIPPA: Absolutely.
VAN SUSTEREN: And it is not one of those Bar proceedings that is held behind closed doors, right?
DIPIPPA: No, no, this is an open proceeding.
VAN SUSTEREN: But we don't know whether there will be cameras or not?
VAN SUSTEREN: All right, Richard, how much will this affect the president, if at all, if he is disbarred?
BEN-VENISTE: I think it doesn't affect him, in terms of his livelihood. I think it is a very important issue to the president. I think there is this terrible desire by President Clinton's opponents to try to make him Richard Nixon. And this is another example of trying to pound that square peg into a round hole.
President Nixon was disbarred because he violated federal law. He wasn't tried for it because he was pardoned, of course. But the evidence was very substantial about his involvement in a criminal obstruction of justice, using his powers as the president. This has no relation to that, in terms of its significance.
VAN SUSTEREN: Let me ask you something, Bob, as a follow-up. The fact that the president has admitted misconduct, admittedly he has not admitted what some of his critics say that he did, but does that in any way help him in this proceeding?
DESTRO: Actually I think it hurts him.
VAN SUSTEREN: Why?
DESTRO: Because then it is a question, he's admitted misconduct, but then the question is: Is it legally sufficient to disbar him? I mean, he's basically admitted he intended to mislead. I mean, that's really the standard for falsehood.
VAN SUSTEREN: Does it make a difference that he was acting as a client versus acting as a lawyer.
DESTRO: I don't think it makes any difference at all because, in fact, I think he was trying to obstruct justice in this case.
VAN SUSTEREN: Now, when we talk about this, Bob, and you teach ethics, I mean, how do these sort of rules and proceedings and laws and standards so set, or is this the type of case where it matters who your judge is?
DESTRO: I think it really matters who your judge is. I think it also matters what state you are in. The legal culture, and the level of ethical behavior tolerated in a given state's bar is, you can read that as you go to the back of every month's Bar Association magazine and see who got disbarred and for what.
VAN SUSTEREN: All right, let me ask all three of you a rather tough question, maybe John, you might want to dodge this one, but if you were deciding this case, assuming that everything we know to be true, would you impose a sanction? if so, what would be your sanction?
DIPIPPA: Well, I have said all along I believe the president is subject to discipline, and I would impose suspension no more than 30 days.
BEN-VENISTE: I'm kind of the same view, but I think the danger to the president is somehow they are going to want to move the goal posts, to change the rules because of all of the publicity, and the fact that the president is president.
VAN SUSTEREN: So what does that mean, 30 days is your -- is that what you would...
BEN-VENISTE: What I would recommend is some kind of sanction. I'm not sure whether an actual suspension or simply a declaration of impropriety in his conduct.
VAN SUSTEREN: Bob?
DESTRO: I would at least suspend him for a year, if not disbar him, because I think that we really are looking at lowering the bar of ethical conduct in court proceedings, if we don't.
VAN SUSTEREN: And why disbarment, though? I mean, what the...
DESTRO: Because I think that lawyers need to have a clear statement. Unfortunately, I think he is the president, I think that he is the chief law enforcement officer of the United States, and if he can't be held accountable then nobody can.
VAN SUSTEREN: John, what does disbarment mean in the state of Arkansas? does that mean forever, or is there a way back in?
DIPIPPA: Well, it could mean forever. It all depends on the basis for disbarment. The rules provide that disbarment is final for five years, and then a person can petition for readmission, unless the disbarment was for serious misconduct that involved dishonesty or fraud. So it could be permanent in a case like this.
VAN SUSTEREN: How do you figure that this is dishonesty or fraud, the attempt to mislead?
DIPIPPA: Well, I think it is the dishonesty question. Remember, the basis for this complaint is rule 8.4, which includes the statement that the lawyers shall conduct himself honestly.
VAN SUSTEREN: Well, let me ask you this question, under Arkansas law, is being evasive, is that the same thing as lying?
DIPIPPA: Well, I think that certainly is the question, which goes back to Judge Wright's referral. Judge Wright's referral found more than evasiveness, Judge Wright's referral found untruthfully.
VAN SUSTEREN: But is her referral, though, a hearsay document? I mean, don't you have to, as Bob says, he thinks a new judge has to look at it sort of a new time, and make his or her own decision.
DIPIPPA: Well, but around the country some disciplinary committees and supreme courts have considered referrals like this, and used them as the basis for the complaint, and precluded the lawyer from relitigating the matter. So it is possible that this judge does not have to conduct a de neuvo hearing.
VAN SUSTEREN: And the fact you say "possible" shows how unsure all of this is.
VAN SUSTEREN: But that's all the time we have for today. Thanks to our guests and thank you for watching.
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