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Possible Perjury in the Clinton Hearing

Jeffrey Rosen is the legal affairs editor of The New Republic, where he writes about constitutional politics. He'll talk about how the courts handle perjury, in light of the Monica Lewinsky situation. Rosen is an associate professor at the George Washington University Law School, where he teaches constitutional law and criminal procedure. His essays and book reviews have appeared in many publications, including The New Yorker, The New York Times Magazine, the Atlantic Monthly, Constitutional Commentary, and the Yale Law Journal.


Other segments from the episode on August 12, 1998

Fresh Air with Terry Gross, August 12, 1998: Interview with Jeffrey Rosen; Interview with Shirley Glass.


Date: AUGUST 12, 1998
Time: 12:00
Tran: 081201np.217
Head: Investigating the President
Sect: News; Domestic
Time: 12:06

MARTY MOSS-COANE, HOST: This is FRESH AIR. I'm Marty Moss-Coane in for Terry Gross.

When President Clinton goes in front of the grand jury on Monday via closed circuit television he'll be asked if he had sex with former White House intern Monica Lewinsky. He denied such a relationship last year when testifying in the Paula Jones sexual harassment case, and earlier this year he made his now-famous remark that he never had sexual relations with "that woman," Monica Lewinsky.

But Lewinsky supposedly has given testimony to the grand jury saying that she had sex with the president. The grand jury will have to decide who is lying, who is telling the truth, and whether a crime has been committed.

My guest Jeffrey Rosen says that sorting all that out is no simple task. Rosen is legal affairs editor for The New Republic and associate professor at George Washington University Law School, and a staff writer at The New Yorker. His article in the August 10 edition of The New Yorker is called "The Perjury Trap."

We began our conversation with the legal definition of perjury.

JEFFREY ROSEN, LEGAL AFFAIRS EDITOR, THE NEW REPUBLIC; ASSOCIATE PROFESSOR, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL; STAFF WRITER, THE NEW YORKER: Perjury has to be both intentional and material. Those are the two prongs that have to be met. So what does that mean? "Intentional" means the lie has to be knowing. I have to believe that the statement was false when I made it. So in the Clinton case, if he believed that he was telling the truth when he said that he didn't have sexual relations, it would not count as an intentional falsehood.

The second requirement is more complicated. The statement has to be material. This means that it has to be important enough to have some impact on the legal proceeding at the time that it was made. Now, the relationship between materiality and admissibility is interesting. In the Paula Jones case, people say the fact that the evidence about Monica Lewinsky was later ruled inadmissible means that the statement was immaterial. But that, I think, is not quite right. The notion is that if the statement was important enough to have had any conceivable influence on the proceedings of the trial, it might indeed be material.

MOSS-COANE: If you're talking about an intentional lie, is it a matter, then, of getting inside that person's head to see whether they knowingly perjured themself in court?

ROSEN: There is a bit of mind reading involved. Of course, the belief has to be reasonable. If I insist that my shirt is red when in fact it's blue, and I insist that I believe that it's red, that wouldn't escape from the "knowing" requirement. But there is a degree to which it's important what the person believed when he or she made the statement, and this is part of our effort to ensure that accidental misstatement, slips of the tongue, are not punished as perjury. Perjury is something we reserve for the most serious lies.

This is in English common law history the kind of misdeed that was punished by eternal damnation. And this is why traditionally courts were reluctant to put defendants under oath in the first place because it was seen almost as a form of moral torture to place someone in the awful position of choosing between self-incrimination on the one hand, and eternal damnation on the other. That's a pretty serious choice and traditionally courts have not wanted to impose it on people.

MOSS-COANE: How do the courts deal with a person who lies in response to an inappropriate question?

ROSEN: Traditionally, courts have tried to make an account for human frailty. And the expression of this accommodation is a wonderful doctrine called the "exculpatory no" doctrine. What's an "exculpatory no"? The idea is that if you're guilty of something and a federal investigator shows up on your doorstep and asks if you did it, and you say "no," and do nothing more than that -- don't mislead them in any other way -- should that be punished as a crime?

Formerly, in the post-Watergate era, some prosecutors have tried to say that that is a crime under an old law called the False Statements Act. Read broadly, this law criminalizes any misstatement to a federal official, whether or not it's under oath and whether or not it's very serious. Some lower courts were uncomfortable with this notion. They said that no one really believes these self-protective lies. So they tried to create this exception called the "exculpatory no" doctrine.

And if the lie was merely self-protective and didn't mislead anyone in any other way, the idea was that shouldn't be punished. Unfortunately, the Supreme Court just last January abolished the exculpatory no doctrine. They said it might be unfair to punish people for these self-protective lies, but the language of the False Statements Act makes no exception. And in a separate opinion, Justice Ruth Bader Ginsburg worried that unscrupulous prosecutors, unable to prove the substantive crime they were trying to prove, would surprise people, ask them whether they were guilty, catch them in a lie, and then prosecute them for the lie, rather than for the underlying crime.

MOSS-COANE: Is perjury treated differently whether it's in a criminal proceeding or a civil proceeding? Or before a grand jury? Or even before Congress?

ROSEN: It's not. Perjury is perjury. Perjury is an intentional and material misstatement under oath. So there would be no legal difference between the president's alleged misstatements in the Paula Jones case and any alleged misstatements that he were to make to a grand jury.

As a matter of prosecutorial discretion however, we tend to treat lies to grand juries with a special seriousness. Unlike a civil deposition, you're not surprised by a grand jury. You can't say that a lie to a grand jury is -- should be excused under a notion like exculpatory no. this is the gravest and most serious of our investigative mechanisms. You're summoned before these fellow citizens and put on your oath. You have every opportunity to reflect on the truth of your statements.

So for this reason, prosecutors might choose to prosecute alleged perjury before grand juries more readily than they would alleged misstatements in civil cases.

MOSS-COANE: How many people are in prison, serving time or have served time, because they lied in court and got caught in a lie?

ROSEN: I certainly don't have the figures at hand, but it is striking to me that of the convictions that independent counsels gained for alleged perjury and also for alleged misstatements under the False Statements Act, many were reversed by juries. Think of the Iran-Contra investigation. Lawrence Walsh invoked the False Statements Act to charge Oliver North with misstatements to Congress. These are unsworn misstatements and it's not perjury. It's a violation of the False Statements Act, and he brings an indictment and the jury considers the matter.

And what does the jury do? They refuse to convict Oliver North of lying to Congress. They convict him of misrepresenting expenses and for spending too much money on a security fence, but they won't convict him of the lie. I talked to Mr. Walsh a few weeks ago for the New Yorker article, and he acknowledged that juries might have a sense that some lies are worse than others. If you're lying to protect -- to cover up a murder, that's one thing. But if you're just protecting yourself, then that might be more forgivable.

So for this reason, when we think -- it's hard -- when we think of great perjury trials in the 20th century, most involve lies to Congress: Alger Hiss, H.R. Haldeman, all the Watergate prosecutions. These are false statements to Congress. They're not -- this suggests that there are not a lot of really famous perjury cases based on misstatements to grand juries and misstatements in civil cases, partly because there is a tradition isn't there of not prosecuting defendants for perjury after they've taken the stand to deny their guilt and are later found guilty.

In theory, if we thought of any criminal case, we might be able to follow it with a perjury charge. O.J. Simpson gets on the stand. Well, he doesn't actually take the stand -- in the civil case, he makes statements about his innocence. He's later found liable by a civil jury. A prosecutor might come in and say: "Well, didn't you lie on your depositions? You should be guilty of perjury."

But because of this accommodation to human frailty and notion that, you know, let God take care of the perjury. The legal system is just going to be concerned with the substantive crime. We don't see a whole lot of perjury prosecutions -- another reason that this extraordinary Lewinsky investigation is so unusual.

MOSS-COANE: Jeffrey Rosen is our guest. He's legal affairs editor for the New Republic and a staff writer at the New Yorker. He has an article in the August 10 edition of the New Yorker called The Perjury Trap. And we are talking about what the law says about lying.

You write in this New Yorker article about the fact that independent counsels have in a sense expanded lying laws far beyond their historical roots, and I'm quoting you there; that they have criminalized the lying process. How was the independent counsel act written which gave, then, independent counsels this ability to expand their jurisdiction?

ROSEN: What the independent counsel law did is create an office with one thing that ordinary prosecutors don't have -- was lacking this one crucial element, and that was political accountability. Formally, independent counsels don't have more powers than ordinary prosecutors. They have a lot more money. They have an unlimited budget. They're not constrained by the resources of an ordinary U.S. Attorney's office. But the main constraint that they lack is political accountability.

If an ordinary prosecutor invokes a law and stretches it in a way that it's never been stretched before, in a way that offends the sensibility of ordinary people, then there will be political prices to pay, either the U.S. attorneys in many states are elected or else the U.S. attorneys in federal districts are supervised by elected officials like the attorney general and ultimately the President of the United States.

Special counsels face no such political constraints, and as a result, eager to justify their existence, here are these -- here they are -- they've been appointed to this important task. They've spent all this money. Maybe they spend $20 million or $30 million so far and have proved unable to prove the crimes they were appointed to investigate. What do they do to prove that they're worth their salt? Well, they go and indict people for lying, often for lying to them. Because if the investigation itself is so intrusive that the suspect is trying not to cooperate, it's not hard to catch people in a lie.

When we add to this the notion that lies about sex are especially understandable -- people have a natural impulse to lie about sex. In an age in which lies about sex are natural and all misstatements to federal officials are felonies, the combination of these two premises means that investigations that stray into the area of sexual behavior become self-fueling mechanism for propelling perjury and false statement indictments.

MOSS-COANE: But in considering the president's alleged behavior, what do you say to the argument that this is the, you know, the chief law enforcement officer of the country? That the president, because of who he is and the position that he holds, really must uphold the law and must be an example, either a legal example or a moral example, to the rest of the country and the world? And that lying by a president is somehow a much more serious act than lying by someone caught with their hand in the till?

ROSEN: This can't be right. The impulse to lie is human. Humans are fallible. The president, unlike most of us, is investigated much more seriously. Most of us don't have special prosecutors tailing us at every stage, asking our Secret Service agents to spy on us, and try to catch us in a lie no matter what.

Now, I'm -- morally, I'm not excusing the behavior in any way, but as a legal matter it -- when you think about the Rube Goldberg set of attenuated connections that led to this event -- questions about consensual sex that were later found inadmissible; that arguably should never have been asked in the first place? No civilized society should ask people to describe their consensual sexual affairs in unrelated legal proceedings. the question that shouldn't have been asked -- a self-protective lie that most of us can imagine, arguably not even perjury because it might not have been material.

I think there's just something profoundly disproportionate about bringing all of the brutal machinery of the legal system to bear on catching someone out in a situation that I think many of us could imagine ourselves acting similarly.

MOSS-COANE: And that's Jeffrey Rosen, our guest today on FRESH AIR. He's legal affairs editor for the New Republic. He's also a staff writer at the New Yorker. And in the August 10 edition of the New Yorker, he has an article called The Perjury Trap. We're talking about lying and the law.

We'll be back after a short break. This is FRESH AIR.


Our guest is Jeffrey Rosen today. He's legal affairs editor for The New Republic, a staff writer at The New Yorker, and we're talking about lying and the law. That's the subject of his August 10 article in The New Yorker called The Perjury Trap.

We've been talking about perjury and the many layers of perjury. But I wonder if we're talking about -- when we talk about subornation of perjury whether we're getting into a much more complex part of the law having to do with obstruction of justice and conspiracy and cover ups.

ROSEN: Those are very scary words, aren't they, when you use them like that?


ROSEN: Obstruction and subornation. In the post-Watergate era, obstruction of justice, too, was expanded so that often misstatements to a federal official that might have had to do with other people increasingly came to be punished as obstruction. So this notion of seriousness, of grave misleading was abandoned, and the idea is that any kind of misleading could count as obstruction.

MOSS-COANE: But is that how witnesses got away with saying things like "I can't remember," "I don't recall" -- that it may not be a direct lie about something, but it may not be the whole truth.

ROSEN: A very sensible legal strategy, isn't it? You know that -- we teach in criminal procedure classes, if you're ever accused of anything or if you're the subject of an investigation, even if you're innocent, it's a very good idea to keep your mouth shut, just to remain silent. Pleading the Fifth is something that the president can't do politically, but it's something that ordinary citizens are well advised to do because your words can be turned against you, and prosecutors and policemen can tie you in knots and can trap you in all sorts of ways.

"I don't remember" and "I don't recall" is a very sensible response to someone who's the target of an investigation.

MOSS-COANE: In talking about the president's case, the alleged lie took place during a civil trial which got thrown out of court. This, of course, was the Paula Jones sexual harassment case against the president. How have courts typically dealt with this kind of scenario?

ROSEN: Well, few courts have been asked the precise question that the Lewinsky investigation poses us with, just because few prosecutors would prosecute alleged lies in dismissed civil cases, because most of them have better things to do. But this is not to say that the fact that the case was thrown out means that the lie is legally insignificant. The question is whether the lie was important enough to have influenced the Paula Jones case at the time that it was told.

So the fact that at first the Lewinsky evidence was ruled inadmissible and then the entire case was thrown out doesn't mean that the lie was immaterial. It just suggests that this is not the kind of case that ordinary prosecutors would actually prosecute.

MOSS-COANE: And does the law define "sex"?

ROSEN: Interestingly, in the Paula Jones case, it does. There was an extraordinary document that the Paula Jones lawyers presented the president with. They said: "Mr. President, I'm going to show you a definition of 'sexual relations.' I want you to read it." And then Jones' lawyer James Fisher (ph) pushed across the table a written document which in scatological detail said: "For the purposes of this deposition, sexual relations shall be defined as ..." -- and proceeded to enumerate just a gruesomely specific series of, you know, contact between various private parts of one person's body with that of another person's body. And then it concluded "for purposes of sexual gratification."


ROSEN: So this is why -- I talked to one of Jones' lawyers a few weeks ago, and almost half-jokingly said: "Well, maybe the president could try to wiggle out of his alleged misstatement by arguing 'I hated every minute of it. It wasn't for purposes of gratification, even though assuming that I have this contact.'"

MOSS-COANE: And under the law could he say that, in a sense be honest?

ROSEN: The question is whether he believed that the statement was false when he made it. That's the requirement that a lie has to be intentional in order to count as perjury. So he could. Alas for his sake, that was the first prong of this three-pronged scatological definition. The second two parts of the definition seemed to close the trap by saying that almost any contact between one person's intimate parts of the body and another were defined as 'sexual relations' for the purposes of the deposition. Which is why a source close to the president's legal team suggested to me recently that well maybe the president's best response is to say: "I didn't remember the definition. It was so complicated that I didn't knowingly lie because I couldn't take it all on board."

MOSS-COANE: I figure you're not in the advice business, but do you have advice for the president when he gives his videotaped testimony before a grand jury about what he should and shouldn't say? How he should and shouldn't present his side of the story?

ROSEN: Of course, I'm not in the advice business. I feel sheepish presuming to speculate. But there seem to be some basic rules. One is that an ordinary suspect would be well advised to plead the Fifth, even if he were innocent. It would just be a very good thing not to make things more difficult and to set himself up in a perjury trap, in which his statements to the grand jury could be contrasted with his statements to Jones' lawyers.

But assuming that that sensible legal avenue is closed to him, it would seem a very good idea to tell the truth. At this point, further lies or lies to a grand jury would be far more serious, largely because there is likely to be far less wiggle room. Jones' lawyers, according to my source, were embarrassed talking about sex. They didn't have it in them to say: "Did you touch her here?" Or "did you -- she touch you there?"

Mr. Starr, for all of his vaunted delicacy, is likely to be far less circumspect in the questions that will be posed to the president next Monday; will be brutally and embarrassingly specific and will leave little wiggle room. So at this point, it probably would be a good idea to tell the truth.

MOSS-COANE: And if that truth doesn't square with the truth that was told in other proceedings, what's the punishment for that?

ROSEN: Well, the argument might be that there's no perjury; that the misstatements to the Jones lawyers he believed were true when he made them, either because they weren't material and also because in his mind, what he did didn't meet the definition of sexual relations that the Jones lawyers told. And so that didn't come as perjury. And then he told the truth to a grand jury. He could plausibly argue that there's no appropriate legal remedy.

Now of course all this is both complicated and enhanced by the fact that no court will ever review these alleged misstatements. Congress, most people believe, is the only body with the constitutional authority to review allegations against the president, and in the course of impeachment hearings -- "impeachment" sounds like a serious word, but impeachment hearings can refer to Congress' attempt to consider far less grave punishments than impeachment.

Congress has the authority to censure or to reprimand or to fine. There are all sorts of lower level shaming punishments that Congress exercised in the 19th century, and they might well, since no one seems to have an appetite to remove the president from office for these alleged misstatements, might well conclude there is really no high crime and misdemeanor at stake here because there's no perjury before the grand jury and the Jones misstatements are too ambiguous to be clearly perjury.

MOSS-COANE: Jeffrey Rosen is legal affairs editor for The New Republic and staff writer for The New Yorker. We'll talk more in the second half of the show.

I'm Marty Moss-Coane and this is FRESH AIR.


MOSS-COANE: This is FRESH AIR. I'm Marty Moss-Coane in for Terry Gross.

We've been talking about perjury and the Independent Counsel Act with Jeffrey Rosen. He's legal affairs editor at The New Republic and a staff writer at The New Yorker. His most recent article in The New Yorker is called The Perjury Trap. Rosen also teaches at George Washington University Law School.

It's interesting to think about this case and to think about the fact that the country is privy to lots of information or alleged information about public officials, someone such as the President of the United States. Are you concerned that there is no privacy or no right to privacy anymore?

ROSEN: Very concerned indeed, and I think that one of the few useful things that's come out of this investigation is to remind or to teach ordinary Americans how little privacy we have. It's a very interesting story about how it was that the law of privacy came to be eroded for innocent people as well as guilty people. It turns out that the most serious erosions of the law of privacy took place in the 1960s and '70s at the hands of the very Supreme Court that's often accused of exalting the law of privacy too far in the abortion cases.

And it's a complicated -- an interesting story, but it perhaps can be dramatized by the notion that in the 19th century, if a prosecutor wanted to come and subpoena your private diaries where you recorded your most secret thoughts, that was considered a core violation of the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable searches and seizures of person, houses, papers and effects.

And if we fast-forward to the late 20th century, think about a case like Bob Packwood -- Senator Packwood whose diaries were subpoenaed and challenged them, invoking these 19th century cases, and was told that the law of privacy had been pulled out from under him. This just shows us how far the law of privacy has eroded. So I think the Lewinsky investigation has reminded all of us of that.

MOSS-COANE: And what is the impact of that -- that erosion of privacy? Some have said, well then certain qualified people won't run for public office because they know what their private life is about and they don't want it opened for public inspection.

ROSEN: Well, that's certainly one danger. That's privacy violations that come at the hands of the press, which faces, properly, no legal constraints on its ability to write about private lives. But I think an equally trouble consequence of this is that ordinary citizens, private citizens, now realize that if they're the subject of an investigation or if their employers are interested in finding out things about them, there's very few private spaces for us to record our private thoughts free from the prying of government investigators. And this can't be a good thing in a civilized society.

MOSS-COANE: I think we understand that someone who's a public person, whether they're a celebrity or a politician or a public official -- that their right to privacy is somehow different from the rest of the population; that there are two different kinds or privacy. Are you seeing, then, the erosion of the privacy for just regular folks? That their lives are also potentially opened up for scrutiny?

ROSEN: Isn't that what Monica Lewinsky teaches us? Here's this young woman who committed no crime, who was a private citizen, who didn't ask to be part of a lawsuit, and suddenly was forced to discuss her most intimate sex life under oath in a legal proceeding against her will? Who had her private bookstore purchases subpoenaed? Who had her mother forced to testify against her?

Monica Lewinsky, for better or worse, her legacy in American history will be ambiguous to say the least, but the one thing she's shown us is the costs of a society that doesn't protect the privacy of ordinary citizens. And I have to feel some sympathy for her for that reason.

MOSS-COANE: Elizabeth Holtzman, who was one of the authors of the original Independent Counsel Act going back to the Nixon era, had a piece in the New York Times on Monday saying that "I never dreamed that a special prosecutor would be using his enormous powers to investigate accusations about a president's private and legal sexual conduct."

I know that the Independent Counsel Act is up for renewal in a couple of months. How would you like to see it rewritten?

ROSEN: I would like to see a stake driven through its heart and to see it wither on the vine and absolutely...

MOSS-COANE: Completely...

ROSEN: ... just, let's rid the country of this scourge. I'm not at all sympathetic to the halfway reform proposals because it seems that they are cosmetic changes. Even narrowing the scope of the targeted officials to the president and vice president would hardly make things better. The grave constitutional anomaly of the statute, as Justice Antonin Scalia pointed out in 1988 when he dissented from the Supreme Court's decision to uphold its constitutionality, is the peculiarity of investigating and subpoenaing a president in the ordinary course of law, at the same time that many people believe that the president can't be criminally tried before he's removed from office.

So this odd constitutional atavism would hardly be saved by narrowing the scope of covered officials. It seems -- I'm also -- it seems like former Congresswoman Holtzman is a little ingenuous when she claims to be surprised by this. The Starr investigation may be the reductio ad absurdum of the flaws of the Independent Counsel Act, but for the past 20 years we've just seen a parade of independent counsels spend a tremendous amount of money and end in rather trivial results.

So I -- I don't know about the politics of the situation, but there is a growing consensus among liberal and conservative legal scholars that the best solution would be to let the act expire entirely and allow wrongdoings of high officials to be prosecuted by the Justice Department, perhaps even in a special office with someone who is appointed for a term of years that exceeded that of a particular administration, as was the case in Watergate. Archibald Cox was not hampered by the fact that he was formally under the supervision of the attorney general. On the contrary, he was enhanced.

Think of this interesting parallel. Archibald Cox was the former solicitor general of John F. Kennedy, who defeated Richard Nixon. Kenneth Starr is the former solicitor general of George Bush, who was defeated by President Clinton. Who had more moral authority to investigate the president? Cox did because he was chosen by the administration that had been of the opposite party. If Kenneth Starr had been appointed by Janet Reno, rather than by these three unelected judges whose political partisanship was suspect, he might have had far more political and moral authority than he does now.

So I'm not moved by the arguments that high wrongdoing cannot be effectively prosecuted by the Justice Department itself.

MOSS-COANE: So we don't need the Independent Counsel Act?

ROSEN: Let's get rid of it and let it die. That would be the one good thing coming out of this dreadful period in our politics.

MOSS-COANE: Well Jeffrey Rosen, thank you very much for joining us today on FRESH AIR.

ROSEN: Thank you so much for having me.

MOSS-COANE: Jeffrey Rosen is legal affairs editor for The New Republic, an associate professor at George Washington University Law School, and a staff writer at The New Yorker. His article in the August 10 edition of The New Yorker is called The Perjury Trap.

This is FRESH AIR.

This is a rush transcript. This copy may not
be in its final form and may be updated.


Dateline: Marty Moss-Coane, Washington, DC
Guest: Jeffrey Rosen
High: Jeffrey Rosen is the legal affairs editor of The New Republic, where he writes about constitutional politics. He'll talk about how the courts handle perjury, in light of the Monica Lewinsky situation. Rosen is an associate professor at the George Washington University Law School, where he teaches constitutional law and criminal procedure. His essays and book reviews have appeared in many publications, including The New Yorker, the New York Times Magazine, the Atlantic Monthly, Constitutional Commentary, and the Yale Law Journal.
Spec: Politics; Justice; Congress
Please note, this is not the final feed of record
Copy: Content and programming copyright 1998 WHYY, Inc. All rights reserved. Transcribed by FDCH, Inc. under license from WHYY, Inc. Formatting copyright 1998 FDCH, Inc. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to WHYY, Inc. This transcript may not be reproduced in whole or in part without prior written permission.
End-Story: Investigating the President
Date: AUGUST 12, 1998
Time: 12:00
Tran: 081202NP.217
Head: Infidelity
Sect: News; Domestic
Time: 12:45

MARTY MOSS-COANE, HOST: We've been talking about perjury in the courtroom. But what about lies in the bedroom? According to researchers, one-third of all women and half of all men have at least one affair over the course of their marriage. But a large percentage of these marriages do survive when a partner cheats.

Dr. Shirley Glass counsels couples who are trying to rebuild their marriage after one partner has been unfaithful. Glass is a psychologist and certified marriage and family therapist with a practice in the Baltimore area. She's also the mom of a famous public radio Glass -- reporter Ira Glass, who's the host and producer of the weekly program "This American Life."

I asked Dr. Glass what a cheating spouse may be looking for in an affair partner.

DR. SHIRLEY GLASS, MARRIAGE AND FAMILY THERAPIST: When someone has an affair, they may be looking for something that's missing in the marriage. They may be looking for something that's missing in themself. And when we marry someone or we're attracted to someone, we often are attracted to someone who has an opposite personality, but may be very similar to us in their basic background of education and cultural experience.

And then the affair partner may be someone very exotic or someone very different, or someone who has a very different personality than the person that we're married to. And basically what we want is we're trying to get it all in one -- you know, by -- we can't get it all in one place. No one person could possibly meet all of our needs. So if we have more than one relationship, then we can have a part of our needs met in this place and a part of our needs met in that place.

One of the things that I've observed is that people often are attracted to an affair because it allows them to be a different person themself. So if at home, I'm the strong, secure one, and then in the affair I can be taken care of; or at home I'm not expressive, and in the affair I'm very loving and caring; or if at home I'm inhibited, and in the affair I'm sexually free and liberated. Then the affair gives me a chance to step out of that frozen role and to experience myself in a different way.

MOSS-COANE: I would think in an affair that the danger of sneaking around can lead to a kind of excitement, so that it's a relationship you might get dressed up for, or you might prepare your hair in a special kind of way because of the danger associated with it.

GLASS: The danger keeps it exciting. And so most of us when we begin a relationship, we're into that stage one where you have the idealization and the romantic projections and the infatuation. In an affair, that stage can last for a very, very long time because the things that increase romantic love are barriers and insecurity. So when you have a forbidden relationship, and you have something that's secret, then that keeps fueling the excitement and the passion.

And then when somebody compares that to a long-term relationship and they say, well, you know, I love my spouse, but I'm not "in love." I hear that so often. What they're really comparing is a stage one relationship with a long-term relationship, and that really isn't fair.

What happens when somebody leaves a marriage for the affair partner is that most of those relationships end. So once they become stable and secure, and once you begin to see that person through the real lenses of life instead of through the, you know, mirrors and smoke and whistles, then that relationship usually doesn't last. In fact, only 10 percent of people who leave a marriage for an affair end up with the affair partner.

MOSS-COANE: Do people like themselves better when they are that person in the affair as opposed to that person in that long-term relationship?

GLASS: Oh, certainly because they're more attentive. They do nice little caring things. They're more interesting. They're more passionate because they have preserved that hour or that several hours to be solely with that person. They don't have anything else pulling them away. And so they're a better partner. And if they would bring that person back home, they would be greeted with all kinds of accolades and admiration at home if they were the person at home that they appear to be in the affair.

MOSS-COANE: You have done a lot of research on affairs, and one of your findings is that they -- that affairs tend to be more egalitarian than a marriage or a long-term relationship.

GLASS: First of all, research has shown that equitable relationships are more satisfying that inequitable relationships. And so what that means is that if I am giving more than I'm getting, then I'm certainly not going to be as satisfied as somebody whose in an equal relationship. But the surprising part of that is even the person who is over-benefited isn't as satisfied as the person in an equitable relationship.

So if we compare, you know, who's more understanding; who initiates sex more; who does more romantic things, then -- and we compare the marriage to the affair, what we find is that in the marriage, I may be getting more or I may be giving more, but in the affair, there's more reciprocity. And so the affair is more satisfying.

So when someone comes back from an affair, what we want to do is to create more giving or more receiving in the marriage, depending on which way it was lopsided to begin with.

MOSS-COANE: Does a relationship have to be sexual? Does it have to be in a sense consummated in order for it to qualify as an affair?

GLASS: Well, I think that an affair can be an emotional affair. And then people want to know, well, what's the difference between an emotional affair and a friendship? And for me, the difference is three distinct things. One is emotional intimacy. And when the emotional intimacy in a friendship is greater than the emotional intimacy in the marriage, then that is one of the danger signs.

So if the friend is hearing all kinds of things about the marriage, but the marital partner is not hearing anything about this friendship, then the emotional intimacy is greater in that friendship than in the marriage, and that's a threat. Another thing that's related to that is secrecy. So for example, I saw a couple one time, and the husband would leave the house and get to work early and have coffee with a woman that he worked with. And he did that for several years. And at his retirement dinner, someone mentioned that and the wife was totally devastated 'cause she knew nothing about it.

MOSS-COANE: It was a secret.

GLASS: Yes, it was a total secret. And she was getting up early every morning and making him a pot of coffee. And when she found that he was going to the office and having coffee with this other woman, I mean it was a terrible betrayal.

MOSS-COANE: And that was an affair, then.

GLASS: Right. And also that affair also contained the third element, which is some kind of sexual chemistry. And so although this couple never really touched each other, there was a lot of flirting and a lot of talking about sexual things. And one of the worst things that somebody can do in a friendship is to say: "Oh, I'm really sexually attracted to you, but of course we'd never do anything about it." Or: "I had this really erotic dream about you last night." Because once you begin to talk about a sexual attraction, then the sexual tension becomes very intense.

MOSS-COANE: Let's say someone is having an affair and they just can't stand it anymore. What do you suggest they do? Confess that they did and promise never to do it again? Or keep it a secret to themselves, and again promise to themselves that they will never do it again? What are the pros and the cons?

GLASS: When someone is trying to decide whether to tell their partner, they have to figure out what their motivation is for telling. And the positive motivation would be to increase intimacy in the marriage or to let their partner know how vulnerable they were or how distressed they were. If the uninvolved spouse is suspicious and thinks that they're crazy, then telling them could be a big relief and relationship-enhancing.

MOSS-COANE: Even if that spouse is furious?

GLASS: Right, right.

MOSS-COANE: Which I would assume they would be.

GLASS: Well sure. Then of course, they're going to be angry.


GLASS: The motivations for telling that I would consider not relationship-enhancing would be if the person just has a lot of guilt, and they need to get it off their chest. So in a sense what they're trying to do is unburden themself, and to place that burden on the other person. And I don't think that that's a healthy reason for telling.

Sometimes people don't want to tell because they say, well, my partner couldn't handle it ...


GLASS: ... or I don't want to cause him that kind of pain. And that may be real or it may just be an excuse.

MOSS-COANE: Right. But you're saying that then it would be possible for someone to keep this secret, never do it again, in a sense live in a relationship as if it never happened -- and not hurt the relationship.

GLASS: I think that's possible. I think that is possible.

MOSS-COANE: My guest is psychologist and certified marriage and family therapist Dr. Shirley Glass. We'll talk more about infidelity after this break.


This is FRESH AIR.

My guest is psychologist Dr. Shirley Glass, an expert on marriage and infidelity.

If a couple's in a relationship, one of them has had an affair, it is found out, they are now discussing the affair and trying out what to do with this relationship that they have -- is it important for the spouse, the spouse that's -- or the partner that stayed at home to know all the intimate details? And I know from conversations that I've read that oftentimes the wounded partner wants to know all those details. Is it important for them to know that?

GLASS: It's important for the wounded partner to have their questions answered.

MOSS-COANE: All their questions?

GLASS: Particularly about who the affair partner was. Did you love that person? How did you arrange to get together with him? -- that's one of the most important things because if you're not willing to discuss the modus operandi, then you could do it again. Whereas for example I had a man who would leave his house an hour earlier every morning than he needed to leave before he went to work, and would come home an hour later than he needed to. And he would stop at the affair partner's apartment on his way to and from work.

Well, once he revealed that information to his wife, then he couldn't do that anymore.


GLASS: So revealing those kinds of details is very, very important. Now, there's a lot of controversy among therapist and also among, you know, friends and family, of course, about whether you should reveal the sexual details. And what I like to do is to have the people wait for those kinds of sexual details because if the marriage is rebuilt, if the affair is stopped, if they really discuss everything else, then at some point the betrayed partner may decide they don't really want to hear all those details.

MOSS-COANE: I would assume -- because I would assume that they then compare -- I mean, there's always that comparison that goes on because someone is choosing someone else over you, at least for certain hours of the day. But that comparing sexual details can be very upsetting; can make you feel kind of insecure.

GLASS: I think the thing that's most upsetting about the sexual details is that once you have that visual image, it's very hard to let go of it. And so then when you're sexually intimate with your partner, then that third person is almost there in the bedroom with you because you're visualizing your partner with that other person. So it can be very destructive, and it can be very self-punishing to ask those kinds of questions.

However, I have known people who had to know.


GLASS: And even though it was very painful, it was part of their healing process to have every single thing described to them in all the vivid detail that anybody could ever imagine.

MOSS-COANE: And then what do they do?

GLASS: They then feel like they have heard it all. They feel like their partner has been totally honest, and they cannot let it rest until they have that last detail. Because what that does is it reestablishes that I'm on the inside, and that that other person is on the outside. And you -- you're telling me every single thing that you did with that other person means that you have no longer any loyalty to that other person. Loyalty is with me.

MOSS-COANE: I'm curious, as this whole question of infidelity is very much in the news -- allegations of Oval Office trysts in the Clinton White House. I'm curious what you've observed about how the public is responding to these allegations, true or false.

GLASS: What I read in the paper, of course, because I have no personal knowledge, is that people approve of the work that the president is doing. It doesn't mean because they don't care about these scandals that they approve of it. It just means that they feel that this is a separate thing. And it's very interesting because certainly in some marriages, the betrayed spouse can compartmentalize in that same way. Well, this person is good to us; they provide well for us; and so I will overlook these sexual escapades because they really don't mean anything about us.

MOSS-COANE: I'm curious, too, as someone whose both a certified marriage and family therapist, how you think a family struggles when their private life -- and we're talking about the Clinton family -- when their private life becomes such a public spectacle, and how difficult it is when families are dealing with their problems internally. But when it becomes the object of just about everybody's conversations, are you concerned about the effect on that marriage? The effect on the child involved?

GLASS: When I think about it, it is humiliating. It is embarrassing to contemplate what it must be like for the wife and the child, particularly for the daughter. Because here you have a young woman who is going into her own adulthood, and to have to deal with these alleged sexual encounters of her father that are publicly known, I can't imagine how difficult it must be. I mean, I've read in the media that they try to prepare her for all this, but I don't think anybody could prepare a child for this.

I was seeing a woman who was divorced because her husband had philandered for many years, and her 11-year-old son watching Clinton said: "Well at least our dad wasn't on TV."

MOSS-COANE: Hmmm. And that's what goes through your mind as you obviously watch all this.

GLASS: Yeah, yeah.

MOSS-COANE: Dr. Shirley Glass, thank you very much for joining us today on FRESH AIR.

GLASS: Thank you very much.

MOSS-COANE: Dr. Shirley Glass is a psychologist and certified marriage and family therapist with a practice in the Baltimore area.

There have been many great country and western tunes written about cheating and fooling around. This one is sung by Patsy Cline.



I know that you've been a-fooling around on me right from the start
So I'll give a-back your ring and I'll take back my heart
And when you're tired of fooling around with two or three
Just come on home and fool around with me.

Well I wasn't fooling around the day I said "I do"
But many a night I wished that I'd a-been a fooling, too
I know it's foolish taking all this misery
But when it's you, a fool I'll always be

I know that you've been a-fooling around on me right from the start
So I'll give a-back your rings and I'll take back my heart
And when you're tired of fooling around with two or three
Then come on home and fool around with me.

So honey, fool around, you know right where I'm at
And don't worry if I'm lonesome 'cause I'm used to that
And when you're tired of fooling around with two or three
Then come on home and fool around with me

I know that you've been a-fooling around on me right from the start
So I'll give a-back your ring and I'll take back my heart
And when you're tired of fooling around with two or three
Just come on home and fool around with me

Please come on home, baby
I'm waiting for you, see?
Mmm-hm. Just for you.

MOSS-COANE: Patsy Cline, recorded in 1961.

For Terry Gross, I'm Marty Moss-Coane.

This is a rush transcript. This copy may not
be in its final form and may be updated.


Dateline: Marty Moss-Coane, Washington, DC
Guest: Shirley Glass
High: Psychologist Shirley Glass talks about infidelity. Glass is a marriage and family therapist who's been cited for her expertise on sexual and relationship problems in the national media. She is working on a book about the trauma of infidelity. Glass answers questions about relationships on the Internet, at She's also been a guest on NPR's "This American Life" hosted by her son, Ira Glass.
Spec: Families; Sexuality; Lifestyles
Please note, this is not the final feed of record
Copy: Content and programming copyright 1998 WHYY, Inc. All rights reserved. Transcribed by FDCH, Inc. under license from WHYY, Inc. Formatting copyright 1998 FDCH, Inc. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to WHYY, Inc. This transcript may not be reproduced in whole or in part without prior written permission.
End-Story: Infidelity
Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.

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