Prosecutor, President Face Off
By Dan Balz and Susan Schmidt
The subpoena with President Clinton's name on it was issued secretly on July 17, never formally acknowledged by the White House and subsequently withdrawn. But it is unlike any other dispensed by Starr's office for the profound effect it has had on the long-running investigation into the relationship between president and former White House intern Monica S. Lewinsky.
Starr's decision to withdraw the subpoena spared Clinton the shame of becoming the first president in history ordered to appear before a criminal grand jury investigating his activities. Instead he will testify "voluntarily" on Aug. 17, in a live audio-video hookup transmitted to grand jurors. That sets up a confrontation between the story Clinton has told about his relationship with Lewinsky and the legal case Starr and his prosecutors have been developing for months -- a case that Starr's allies believe is seeded with enough evidentiary land mines to put the president in grave legal jeopardy when he raises his hand and swears to tell the truth.
Starr and Clinton have circled one another warily all year: dogged prosecutor versus master politician, each feeling victimized by the other. In the court of public opinion, it has been a mismatch in Clinton's favor. Just read the polls, the president's advisers say. But in the court of law, the outcome is still in question, and this week, Starr appeared to put Clinton on the defensive in a way he hasn't been since the first days of the Lewinsky investigation.
Starr achieved this with a series of bold moves that are part of an elaborate legal chess match that is still unfolding. In rapid succession, and to the surprise of many people in and out of the White House, Starr succeeded in forcing the testimony of members of Clinton's Secret Service detail, struck a deal with Lewinsky (and her mother) that provides a broad grant of immunity in exchange for her testimony (and a dress now being tested for DNA evidence), and got the president to agree to tell his story under oath to a prosecuting team his aides have vilified for months as partisan, biased and out of control.
An investigation that had dragged on inconclusively for months now appeared headed for a conclusion and the possibility that Starr could send a report of his findings to Congress before the fall elections. Even if Congress doesn't act on the report, Starr's findings could shape the political environment in the final weeks of midterm elections that will determine whether the Republicans remain in control of Congress. That was more than enough for political Washington, which was grieving over the killings of two Capitol Police officers only a few days before, to begin to refocus attention on the impending collision between Clinton and Starr and the potential for collateral damage to members of the two political parties nervously awaiting the outcome.
The prospect of Clinton and Lewinsky testifying this month prompted an intensive round of speculation about the president's next move. If Clinton has told the whole truth, then he faces nothing more than an excruciating interrogation and eventual exoneration. If he has not, his choices are painful.
He can stick with the story he told under oath in the Paula Jones civil case, and which he repeated forcefully before television cameras on Jan. 26, even if it appears likely to contradict Lewinsky's testimony on the question of whether their relationship was sexual. Or he can adopt what quickly became known this week as the "mea culpa strategy" in which he would acknowledge that his earlier sworn testimony was untrue, ask the public for forgiveness and hope that such a confession would prevent Starr or Congress from moving against him.
On Friday, Clinton appeared in the Rose Garden to talk about the economy. But when asked about Lewinsky, he had but one comment. "I am looking forward to the opportunity, in the next few days, of testifying," he said. "I will do so completely and truthfully. I am anxious to do it." Beyond that, he vowed, he would have nothing more to say publicly before Aug. 17.
But as he departed Washington for a weekend of political fund-raising in the Hamptons on Long Island, and as Lewinsky prepared for a round of meetings with Starr's team, the question of Clinton's future ricocheted around the city. Had Starr's moves finally put the president in check, or will the box he appears to be in turn out to be illusory?
On the morning of July 17, lawyers in Starr's office gathered around their television screens. They were waiting to learn whether Chief Justice William H. Rehnquist would block their efforts to question Secret Service employees about Lewinsky's visits to the White House or give them a legal victory that could put the investigation into high gear.
Four minutes before the noon deadline, the word came. It was a green light from the chief justice that elated Starr's staff. Within two hours, the first of the Secret Service agents called to testify was in the grand jury room.
When the history of the investigation is finally written, July 17 may be remembered as one of the most important days. The Rehnquist decision gave Starr a critical legal victory that jolted his probe forward and gave him the opportunity to develop corroborating evidence from unassailable sources -- the president's own protectors -- that would make his case something other than a "he-said, she-said" controversy.
Equally important -- and unknown publicly at the time -- was the fact that on that day, as he learned he would get potentially powerful testimony corroborating an affair, Starr issued a subpoena to the president.
Now that events have played out, Starr's multi-pronged legal strategy has become clearer. Through court motions, subpoenas and his overture to Lewinsky, Starr has cut through a legal thicket of obstacles and secured the testimony not only of the two principal characters in the investigation but others with intimate access to White House inner workings.
Starr's moves were all the more effective because they marked a break from his usual patterns and therefore surprised his doubters. Starr, who has shown no patience in the past for recalcitrant witnesses, suddenly offered an olive branch that brought Lewinsky to him. And, after months of unsuccessful efforts to negotiate for their testimony, he abruptly got tough with the president and the Secret Service.
"These were aggressive strategic moves, and probably reflect Starr's desire to bring this to conclusion as quickly as possible," said John Bates, former deputy to Starr who is now in private legal practice.
These tactics are the product of the daily 5 p.m. strategy sessions held at Starr's locked quarters at a Pennsylvania Avenue office building -- meetings not so dissimilar to the twice-a-day sessions held at the White House.
Up to 40 lawyers and investigators attend Starr's meetings. They begin with a review of new information developed during the day. Once the investigators leave the room, the remaining lawyers concentrate on gaming out their legal strategies. The participants bring together everyone from experts on appellate law -- among them Starr himself -- to career Justice Department prosecutors to young ex-Supreme Court clerks. One of the participants is Samuel Dash, the former Watergate committee counsel who is now Starr's ethics adviser.
It was from these sessions that the outlines for the legal box Clinton may now be in began taking shape. The first public sign of the strategy came that Friday two weeks ago, when the first of the Secret Service officers were summoned to tell the grand jury what they saw.
Starr gained access to Clinton's personal guards months earlier than ever anticipated by means of a series of rapid-fire court motions that the Secret Service and Justice Department proved powerless to counter. They had argued that compelling the testimony would encourage presidents to keep the Secret Service at arms length, putting the presidents' safety at risk.
Starr subpoenaed three Secret Service employees, and U.S. District Judge Norma Holloway Johnson, who oversees the Starr grand jury, ruled in June they should testify. The Secret Service appealed and lost before a three-judge panel of the Court of Appeals. Starr then unexpectedly short-circuited what could have been months of legal delays by showering new subpoenas on six more officers and on the agent who heads the president's protective detail. That act forced the Secret Service and the Justice Department to seek an emergency stay in court.
Within 72 hours, the legal issue had rocketed through the judicial system to the Supreme Court at an almost unprecedented pace. And within hours of Rehnquist's decision to allow Starr to move forward, Secret Service officers were testifying before a grand jury.
Little is known about what the Secret Service employees have told the grand jury, other than they have been asked about times and dates of Lewinsky's Oval Office visits. In court papers seeking their testimony, Starr described the Secret Service testimony as some of the most important evidence his office is seeking. His office, he said, "is in possession of information that Secret Service personnel may have observed evidence of possible crimes while stationed in and around the White House complex."
"Clinton can safely contradict Monica if there is little or nothing that supports her version of events," said lawyer Robert J. Giuffra Jr., former chief counsel for Republicans on the Senate Whitewater committee. "But if there is powerful evidence corroborating her version of events, then the president is in a tougher spot."
The Rehnquist decision broke a six-month deadlock over testimony from Secret Service agents. The presidential subpoena issued later that day, which was secretly dispatched to Clinton's lawyer, David E. Kendall, broke a similarly long impasse over the president's testimony.
"The subpoena really shocked them," one Starr ally said of Clinton's legal and political team. "They thought Starr would never do it."
But a Clinton adviser said the shock wasn't so much the subpoena itself but Clinton's decision not to fight it by challenging Starr's authority in court. Clinton could also have chosen to invoke his Fifth Amendment right to refuse to testify. "The really big unexpected thing is the president's decision to give evidence to Starr," said this Clinton adviser.
What finally forced the decision is known only to the president himself, but there is widespread belief that the political realities of the situation ultimately outweighed the legal dangers.
At a time when many legal experts -- and some of the president's advisers -- were arguing against testifying on the grounds that it would put the president too much at risk, it became clear that Democratic lawmakers would not support a protracted battle over the issue.
"The Democrats I've talked to -- politicians and political advisers -- do not want to have to defend the president not cooperating," said Floyd Ciruli, a Denver-based Democratic pollster whose views were echoed by others.
Presidential advisers who wanted the president to testify used whatever evidence of Democratic unrest they could find to bolster their arguments, even an incident involving House Minority Leader Richard A. Gephardt (D-Mo.) that was not designed to pressure the president publicly.
On the morning of July 24 -- hours before the White House said anything about the ongoing negotiations between Starr and Kendall -- Gephardt appeared on CNN's "Evans and Novak and Shields and Hunt." Asked whether Clinton should testify if subpoenaed, Gephardt replied, "I would hope that he would. I would think that he would."
Gephardt's aides quickly called the White House, both to warn officials there and to explain that the minority leader was not mounting a public campaign against the president, that in fact his words were no different than they had been in previous interview shows.
Sources said Gephardt's advisers were told not to worry, that whatever the minority leader's intentions, his statement would be helpful in resolving the internal argument in favor of those who wanted an agreement to produce presidential testimony.
Unlocking the long-stalled Lewinsky negotiations was the final piece of Starr's strategy.
At the time the subpoena became public, allies to both Starr and the president said they believed it was in Clinton's interest to testify in advance of Lewinsky, given the fact that she had been refusing to cooperate with Starr and thus appeared unlikely to contradict the president. What Clinton and his legal advisers may not have known, however, was that Starr was quietly reaching out to Lewinsky even as he negotiated with Kendall over the terms of the president's testimony.
"The smartest thing Starr's done is to back off on Lewinsky and get her testimony," said one defense lawyer involved in the investigation.
With the help of Samuel Dash, the breakthrough came on Wednesday, July 22. After more than a month without contact, Starr suddenly called Lewinsky lawyer Jacob A. Stein, a friend and former independent counsel, saying, "Let's meet." The next day -- Lewinsky's 25th birthday -- Stein and co-counsel Plato Cacheris met for an hour over bagels with Starr at Dash's Chevy Chase home. Starr was ready to deal, as long as he could interview Lewinsky first.
Lewinsky's lawyers asked how soon. "Starr was like, 'Now,' " Cacheris recalled.
Concerned about being seen in Washington, the group set up a meeting in New York at 10:30 a.m. Monday at the Manhattan apartment of a relative of someone in the independent counsel's office. To make Lewinsky comfortable, Stein and Cacheris brought Sydney Jean Hoffmann -- one of three lawyers along with Preston Burton and Bob Bredhoff who had been debriefing her -- and Hoffmann asked the first half-hour of questions. With Dash observing, Starr deputies Robert Bittman, Solomon L. Wisenberg and Mary Anne Wirth, took over for the next 4 1/2 hours, breaking only for roast beef and tuna salad sandwiches.
The prosecutors were satisfied with her account. The next morning, Stein and Cacheris met with Starr, who presented them with an immunity agreement. Lewinsky drove with family spokeswoman Judy Smith from New York to Washington overnight, rather than take a chance of being spotted on an airplane and signed the deal a few hours later.
Lewinsky agreed to testify she had an affair with the president and that the two of them discussed ways to conceal it from lawyers in the Jones case, sources said. Lewinsky turned over to Starr messages from Clinton recorded on her home phone, as well as a dress, now at the FBI lab, that she has told prosecutors was stained with the president's semen, according to those sources.
Leaks about what Lewinsky has told prosecutors, particularly any disclosures of physical evidence, could be instructive as he prepares to testify. "The leaks are clear signals to the president by people who don't want him to commit perjury that it may not be just a 'he-said, she-said' case," said George Washington University criminal law professor Stephen Saltzburg.
The reappearance of the dress was the most sensational news of the week, but there was another report that, in the eyes of Clinton's defenders, was equally important. Sources said that Lewinsky was prepared to testify that she -- and not anyone close to Clinton -- had written the infamous talking points she gave to her former friend, Linda R. Tripp, showing how Tripp could alter her story in the Jones case, based on Tripp's own ideas, something Tripp denied.
In one sense, the news of the week was reminiscent of the scandal's first days -- dramatic developments, breathless news reports, salacious details and a president embattled. But, on the surface at least, there was a sense of calm among a team of people who have learned how to live in the eye of storm and scandal.
"We kind of know what the drill is," a senior administration official said. "Most of it is just getting through the day."
The news brought a surreal atmosphere to the White House briefing room, as Press Secretary Michael McCurry sparred with reporters over the implications of Lewinsky's immunity agreement and the president's decision to testify.
"How does the president feel about Monica Lewinsky making a deal with the independent counsel?" he was asked.
"I think he's pleased that things are working out for her," McCurry said.
The reporters were dumbstruck. "They're working out for her," another reporter asked a moment later. "Are they working out for him?"
"They will eventually," McCurry responded.
On Capitol Hill, everyone was preoccupied by the trauma of the shootings on the afternoon of July 24. When news of the Lewinsky immunity agreement broke, members of Congress and the president were preparing for a memorial service in the Rotunda for Officers J.J. Chestnut and John Gibson.
But Democrats had a more muted reaction to the latest developments than they had to the first reports of a presidency in crisis last January. As nervous as they are, they have learned not to jump to conclusions about Bill Clinton's future.
"People have been through this roller coaster for six months," one congressional Democrat said. "We're at a downturn clearly in the roller coaster, but Harry Houdini will go back up again."
A senior Democratic lawmaker put it differently. "I think we all are convinced that we are along for the ride," he said. He added, "We have far more to gain if we stay the course and support the president . . . And I don't think the public frankly connects [the investigation] to party politics or electoral politics in general -- or the president's ability to lead the country."
The immediate indicators reinforced Democrats' determination to hold tight to the presidential mast. A series of new polls showed Clinton's approval rating holding firm in light of the newest revelations, even though a majority of Americans said they thought he was lying about his relationship with Lewinsky.
In an ABC News poll, 68 percent of those surveyed said they believed Clinton and Lewinsky had a sexual relationship (it was at 53 percent in January), but 63 percent approved of the way he is handling his job as president and 57 percent said they would oppose impeaching him for lying under oath about the affair.
In the welter of polling data that gushed forth, there was one interesting finding, however. A poll conducted by the Wall Street Journal and NBC News asked the public to state which of the key players in the drama they liked least. Linda Tripp led the pack at 32 percent. The president was next at 22 percent, followed by Starr at 21 percent. Monica Lewinsky, whom many in the White House and elsewhere regard as a damaged witness against the president, turned out to be the least unpopular of the group. She was liked least by only 13 percent of those surveyed.
Republican reaction to the news of Lewinsky's immunity agreement and Clinton's agreement to testify was as muted as the Democrats', but for a different reason. It will fall to the Republicans to determine how to handle a report from Starr, should it arrive before the fall elections.
House Speaker Newt Gingrich (R-Ga.) earlier had decided to turn over the responsibility for handling a Starr report to House Judiciary Committee Chairman Henry J. Hyde (R-Ill.). At a closed-door caucus last week, the speaker reminded Republicans of that decision and encouraged them to stay out of the matter until the elections are over. "He said, 'Leave it alone and let the press deal with it,' " Rep. Cass Ballenger (R-N.C.) said after the meeting.
Republicans fear a backlash if they mishandle what Starr sends them. "If it's mishandled, it could hurt the Republican Party severely," said a veteran GOP strategist with close ties to Capitol Hill. "It's much more than politics; it's fundamental to our country, and how we deal with it is as important as the outcome."
But Democrats clearly are the more nervous as the mid-August showdown between Starr and the president approaches. Some of them remain confident that public opinion cannot be altered by what may happen next -- that there will never be public support for impeachment of a president for lying about a sexual relationship.
Others are less certain. "All of this speculation about what's good and what's not presumes a familiarity with the facts," one Democratic strategist said. He added, "If Starr is writing a report with [Lewinsky's] testimony, her mother's testimony, Linda Tripp's tapes, the Secret Service and all the corroborative evidence, it seems that when all this is put together, it makes it a different story than it was yesterday."
Staff writers Juliet Eilperin and Peter Baker and researcher Alice Crites contributed to this report.
© Copyright 1998 The Washington Post Company