In Re: Perjury Trap Defense
From: Marc Perkel
309 North Jefferson #220
Springfield Mo. 65802
To: Bettie Currie / President Clinton / Orson Porter / David Kendall / Greg Graig
Revised Edition. My secretary found so many mistakes she made me do it over, so I added more arguments while making revisions. Please pass this on to the President, thanks.
Dear Clinton Legal Staff,
Thank you for taking the time to read this. I know you are very busy working on a defense strategy for the upcoming Senate trial. I am a strong supporter as well as the former Democratic candidate for United States Congress here in the 7th district of Missouri. I would like to contribute my legal skills to our cause of defending the President and I hope that you will find my arguments to be useful and that we can put this atrocity behind us and get on with the business of the people. In this brief I will first discuss the Perjury Trap argument from a legal perspective, and then I'll discuss it from a political perspective. I hope that the combination my of legal skills, my political skills, and the logical disciplines my of being a computer programmer will allow me to offer a usable defense strategy to serve the President.
Perjury Trap / Legal Perspective / Definitions
In the case of United States vs. Chen, 933 F.2d 793, 796-97, A perjury trap is created when the government calls a witness before the grand jury for the primary purpose of obtaining testimony from him in order to prosecute him later for perjury. United States v. Simone, 627 F. Supp. 1264, 1268 (D. N.J. 1986) (perjury trap involves "the deliberate use of a judicial proceeding to secure perjured testimony, a concept in itself abhorrent"). It involves the government's use of its investigatory powers to secure a perjury indictment on matters which are neither material nor germane to a legitimate ongoing investigation of the grand jury. See United States v. Crisconi, 520 F. Supp. 915, 920 (D. Del. 1981). Such governmental conduct might violate a defendant's fifth amendment right to due process, Simone, 627 F. Supp. at 1267-72, or be an abuse of grand jury proceedings, Crisconi, 520 F. Supp. at 920. See generally Gershman, The "Perjury Trap", 129 U. Pa. L. Rev. 624, 683 (1981).
The Chen case goes on to say, "If a court divines that the purpose of repetitious questioning is to coax a witness into the commission of perjury . . . such conduct would be an abuse of the grand jury process."
Perjury Trap as applied to President Clinton
The facts of the matter are rather obvious. This whole process, ever since Starr was appointed was an Impeachment in search of a Crime. Having investigated Whitewater, TravelGate, FileGate, the Foster Suicide, and a number of other artificial scandals, and having failed to find a crime, Starr was running out of things to investigate. Then one day Linda Tripp comes forward with a tape of Monica Lewinsky talking about having sexual contact (not sexual relations) with the President. Starr interviewed her without a lawyer and attempted to put a wire on her to get the President.
In spite of the fact that Starr had actual knowledge of the Lewinsky affair, he failed to reveal his knowledge to the President's counsel. The idea was to catch the President by surprise in the Jones deposition. As we all know, having sex is neither a criminal act nor an impeachable offense. However, it is extremely embarrassing and it is something that most of us would tend to lie about. In fact, we as a society have a lot of sexual phobias and because we Americans can not face our own sexuality, we as a society deal with it by lying about sex. In other words, lying about sex is an established American custom. I would point out that although most people consider the President's behavior to be sinful, sexual behavior is a human instinct that is more powerful than reason and is necessary for reproduction; and, if not for such instincts as depicted by the President's behavior, the human race would have been extinct millions of years ago. But that's another argum ent that I will save for another day. My point here is that because our American culture will not face sexual behavior from a realistic perspective, it is normal and expected in our society to lie about sex. This is especially true if you are an elected official.
Thus, Ken Starr, knowing that the President could be caught off guard because the President didn't know that Starr had Ms. Lewinsky on tape, took the opportunity through communicating with Jones lawyers to get them to try to get the President to commit perjury by lying about having sex. I have to say that the President did an excellent job of avoiding the question. It is unclear, based on the bizarre definitions he was given, what sexual relations were. I know that if I were told that two people had "sexual relations" that I would assume they meant intercourse. However, I'll leave that argument for another day.
In the Jones case the perjury charge fails on the issue of materiality. As we all know, perjury has three elements. It is a false statement, the speaker must know it to be false (scienter), and it must be material. Material means likely to affect the outcome of the case. In this case the judge ruled that the Lewinsky affair, if true, was not material, and the case was dismissed on a 12(b)6 motion for failing to state a claim for which relief can be granted.
Thus a claim that the President committed perjury in the Jones deposition must fail on the element of materiality even if it were proven that he made a false statement under oath. Therefore, Mr. Starr needed more than just the Jones deposition in order to get the President. He needed to get the President to lie before the Grand Jury.
In bringing the President before the Grand Jury, Starr's strategy was to get the President to "lie about the lie". Because the Grand Jury was supposedly a criminal proceeding, the element of materiality is presumed. Thus Starr could take what he contended was a knowingly false statement from the Jones deposition and use the Grand Jury to supply the missing element of materiality in order to bootstrap a perjury count. In fact, I think that it is clear that the purpose of the President's Grand Jury testimony was solely for manufacturing a perjury charge against him. The President was questioned under oath only for the purpose of trying to get him to lie so that he could later be charged with perjury.
Which brings us back to the definition of Perjury Trap. A perjury trap is created when the government calls a witness before the Grand Jury for the primary purpose of obtaining testimony from him in order to prosecute him later for perjury. Never have I seen such a clear case of a Perjury Trap as this one. Since this is clearly a Perjury Trap, the next question is, how can we use this to make an impeachment defense?
Perjury Trap / Legal Precedent
There are a number of cases on the issue of perjury traps. Some circuits have accepted it and some haven't. None have ruled it out and the Supreme Court has yet to take a position on this issue. (However, with Justice Renquist being the judge in the Senate, a finding of Perjury Trap might be considered a Supreme Court decision. We are exploring new legal territory here and it's time to think outside the box.) Although some circuits have yet to embrace the "Doctrine of Perjury Trap" all circuits have accepted that a Perjury Trap involves "the deliberate use of a judicial proceeding to secure perjured testimony, a concept in itself abhorrent".
Even though it would be difficult to overturn a conviction based on a Perjury Trap, that isn't what we're trying to do here. The Senate trial is, at best, a quasi-judicial body and these are politicians making a political decision, not a legal decision, although their decision should be supported by a good legal argument. The Democratic senators need a good legal reason to vote No and it is our job to provide that reason. Ultimately, our goal is to get 34 senators to see it our way. It is also necessary to make the case to the people so that the people understand and support the argument. I believe that the concept of Perjury Trap might contribute significantly to your overall argument. If the people see that Starr manufactured this crime, the people will side with us.
Making the Perjury Trap Argument
A Perjury Trap is not a technical loophole for a criminal to escape justice through procedural trickery. A Perjury Trap is an artificial crime manufactured by a prosecutor who can't win his case through legitimate means. In this case, the President committed no crime. Starr, having found nothing else to go on, attempted to manufacturer a crime by first questioning the President about a subject of extreme embarrassment and forcing him to put his family and marriage in jeopardy as well as his friends, associates, his lover Monica, and the Democratic Party.
Starr, using the unlimited resources of the United States Government, employed every means he could to play with definitions of words and to use trickery to get the President to say anything that when taken out of context could be twisted into something that could be construed as perjury to those who are the enemies of the President. So weak is their claim that the Republican Congress published the private conversations and secret Grand Jury testimony on the internet containing explicit sexual details in order to shock the public and to obscure the true nature of the facts. So desperate was Starr that he illegally leaked Grand Jury testimony so as to manipulate events in his favor. Then he proceeded to become an advocate for impeachment and his advocacy was so ethically offensive that his ethics advisor resigned. Knowing that the new Congress who was elected by the people after the scandal broke would never pass Articles of Impeachment, the 105th Congress bypassed the w ill of the people and passed it in a nearly party line vote. In order to get that party line vote, the Republicans offered up as human sacrifices two Speakers of the House who fell on their swords in order to support charges that the public finds ridiculous.
This has been an impeachment in search of a crime by people who are out to get the President no matter what the cost. When they failed to find a crime they used a Perjury Trap to manufacturer one and failed to even do that. Now we are asked to reverse two elections and remove a president from office who has the support of 72% of the public because he was possibly tricked into lying about a blowjob? I think not!
Opportunity or Curse?
Is this impeachment a curse, or is it perhaps an opportunity. The judicial system is out of control. It is incapable of enforcing it's own ethical standards and the Republicans have taken advantage of these ethical lapses in order to undermine the will of the voters. The legal abuses that are happening to the President are the same legal abuses that are happening to millions of Americans. And if the courts can't enforce ethical standards to protect the civil rights of the President of the United States, then where do we normal citizens turn for justice? Our justice system has opted out of the "balance of power" as required by the Constitution by becoming self regulating. Self regulation is in effect, no regulation. Although the judiciary needs to be independent in its decisions; its ethics should be externally regulated so as to ensure that Kenneth Starr can't break the rules and get away with it.
The nation is talking about what price the President should pay for his "sins". Before we get into the price however, I want to talk about what those sins are. For the sin of having sex with Monica, having to confess it to the whole world and deal with his wife and explain it to his daughter is plenty punishment enough for the sex. As to the perjury, there was no perjury, therefore no penalty. There is however two sins that the President owes the people for. One is lying to the country, because the common definition, not the legal definition applies here. I don't think the penalty should be community service because the President has been doing community service his whole life and he loves community service. Maybe they should force him to take a one month vacation, fishing and golfing with former President Bush (an expert on the subject), and be prohibited from doing community service for that month.
The other sin that nobody's talking about is the President naive trust in the government when he agreed to be investigated by an independent counsel when he had committed no crime. By doing so, the President set a very bad precedent of allowing the government to investigate people looking for a crime.
This country was founded on the basis of a fundamental distrust of the government, and for good reason. This distrust was instilled in the Constitution foreseeing the day when the Constitution would be violated as it's being violated today by the Republican Party. We have a right to not have to prove our innocence. The President violated that right by agreeing to be investigated to show everyone that he is not guilty. I contend that trusting the government is an unconstitutional act and a very bad example to set. This whole investigation would never have been started if the justice department had the burden of first establishing probable cause.
As a result, the President has made evident that our system of government is vulnerable to attack by people who would undermine the Constitution and impose their will over the will of the people. Our system of government and our freedoms are under attack by right wing extremists who would take away and undue 220 years of freedom and democracy and replace it with a government where the few enslave the masses. This battle we fight isn't over who is going to be president for the next two years. This is over the issue of allowing our freedoms to be sold out to the right wing extremists, and it is important that the will of the people prevail.
Therefore I say, that for the sin of failing to mistrust the government, when the President had the duty to mistrust the government, that the President needs to not only win this battle, but to take the necessary steps to ensure that no subversive group can come as close to taking away our freedoms as we are to losing our freedoms today. This is an opportunity to plug the holes in the system and to ensure that freedom and democracy is protected for the next 220 years. I think that the President has a karmic duty to spend the next two years fixing the system so that our freedoms, privileges, and immunities are never threatened again.
This planet is on the verge of a technological revolution beyond comprehension. The world will change more in the next 30 years than it did in the last 3000 years. Computers will be thousands of times more powerful and true artificial intelligence will exist. Genetic engineering will give us life spans of 150 to 200 years. We will be able to directly control our own evolution, first removing genetic disorders, then making genetic improvements. We will be able to manufacture life from scratch and make new life forms that never existed before. The questions we face is how will our rights as individuals be protected in relation to this new technology? When we have the power to control our next evolutionary jump and can choose to become whatever we want, what will our choice be?
America is the last superpower. I can't imagine what it would be like to live in a world with the technology we are about to develop and under the control of right wing extremists. We might become like the "Borg" in "Star Trek" if we don't take steps now to protect our rights. I believe the events that we deal with today are our chance to change the future, and that we should be thankful for the opportunity this impeachment gives us to set our nation back on the right path.
I will be posting this document on the web at:
I will probably update it and add to it. I also have a web page on impeachment at:
And, my Republicans for Clinton page is at:
My 2 cents…Good Luck!