Clinton Team Focuses on Countering Evidence
Washington Post Staff Writers
Tuesday, January 5, 1999; Page A1
President Clinton's defense team has decided to mount a more concentrated attack on the evidence against him during his Senate trial after concluding that it allowed Republicans to define the facts of the case during House proceedings that led to his impeachment last month.
The White House would prefer to avoid a trial altogether and is preparing to file a motion in the Senate seeking to have the case dismissed entirely. But Clinton advisers have resigned themselves to the likelihood of at least an abbreviated Senate trial and are assembling a defense to present with or without witnesses.
As the president's lawyers met again yesterday to plot their approach, though, they remained hampered by uncertainty about the format and timing of the proceedings against Clinton. Senate Majority Leader Trent Lott (R-Miss.) appears to be having increasing trouble mustering GOP support for a bipartisan plan that calls for a brief preliminary hearing next week followed by a test vote that would end the trial unless two-thirds of the Senate opts for a full proceeding.
Although most Democrats have embraced the idea, many Republicans are balking at cutting short the process. Lott, who has not endorsed the plan even as he has been gauging support for it, does not plan to introduce it if he cannot count on the backing of a majority of Republicans, according to colleagues.
The fluid situation made planning problematic for all sides as the 106th Congress convenes tomorrow. Senate Republicans scheduled meetings for the next two days to search for agreement on a procedure. The House plans to vote tomorrow to reauthorize its prosecution team, while Democrats were mulling possible maneuvers such as proposing restrictions on the "managers" who will handle the case. And Clinton was preparing to proceed with his State of the Union address on Jan. 19, although aides did not rule out postponing it because of the Senate trial.
Once such a proceeding opens, Clinton's lawyers are seriously considering several moves, including a dismissal motion that would require a bare majority of the senators or possibly even a motion asking that the two articles of impeachment be quashed because they were approved by a lame-duck House.
Assuming such motions fail, the president's defense would focus more directly on refuting the charges of perjury and obstruction of justice. During the House debate, Clinton's defenders argued that the allegations were not serious enough to justify his removal, even if true. But many Republican lawmakers concluded that Clinton was not contesting the factual case assembled by independent counsel Kenneth W. Starr.
Without dropping those constitutional arguments, Clinton's advisers have resolved not to let that happen again in the Senate, even at the risk of reigniting complaints that his defense relies on legalistic hair-splitting. When Starr first submitted his report to Congress in September, the president's aides picked at the prosecutor's case, only to spur bipartisan criticism about their narrowly focused points.
"The articles [of impeachment] are constitutionally deficient, legally defective and factually without foundation," said White House special counsel Gregory B. Craig. "We would welcome, we do not fear, a fair trial before a fair-minded jury."
"The first prong of the strategy is very, very strong on the evidence and the facts," said another White House adviser who did not want to be named.
In examining the House case over the last two weeks, Clinton lawyers have identified what they consider the holes in each of the specific allegations cited to support the charges. In each of those instances, they plan to argue that innocent explanations undercut the assertion of corrupt motives by the president.
Perjury. Because the House rejected a separate article of impeachment alleging that Clinton committed perjury when he denied a sexual relationship with Monica S. Lewinsky during the Paula Jones case, the only sworn statements at issue came during his subsequent appearance before Starr's grand jury.
As a result, Clinton advisers believe they have a stronger factual basis to defend him. The president's answers in the Jones case -- denying not only sex but also any specific recollections of being alone with Lewinsky or of gifts he gave her -- were more difficult to describe as truthful. Even many House Democrats called them blatantly false.
But the grand jury statements in dispute involve more ambiguous issues that Clinton lawyers plan to characterize as merely unimportant details. To make that point, the White House will emphasize that Clinton acknowledged a sexual relationship with Lewinsky before the grand jury and disagreed with her testimony only about matters such as when it began and what types of activity it involved.
Moreover, the defense could turn on Clinton's state of mind. In insisting he was truthful when he previously denied having "sexual relations" with Lewinsky, Clinton could be relying on a novel reading of the definition used by Jones's lawyers, which included fondling certain parts of the anatomy "with an intent to arouse or gratify the sexual desire of any person." Clinton's defenders could argue that no one has proved he had any such intent even if he did touch her as Lewinsky has testified.
Obstruction of justice. House Republicans focused on seven events to make the case that Clinton tried to improperly impede the Jones case and the Starr investigation, but the White House is banking on the fact that no witness has offered testimony directly accusing Clinton of illegal motives. In particular, they plan to cite repeatedly Lewinsky's statement that no one asked her to lie or offered her a job in exchange for filing a false affidavit in the Jones case.
While he encouraged Lewinsky to file an affidavit to avoid testifying, Clinton's defenders say he believed she could swear out an accurate statement without revealing their affair -- denying, for example, that he ever sexually harassed her or that they ever had intercourse.
They will stress that the job search launched for Lewinsky by his associates began long before she was called as a witness. They will note that no one testified that Clinton ordered his secretary, Betty Currie, to retrieve gifts from Lewinsky to avoid a Jones subpoena. And they will point out that Currie was not a witness in any proceeding when Clinton summoned her to the White House the day after his Jones deposition and appeared to coach her with a false version of events.
The House prosecutors have rebuttals for all these arguments. They note, for instance, that Clinton had every reason to believe Currie might be called to testify because he himself told Jones's lawyers to "ask her." And Starr pointed out that the job search produced little for Lewinsky until she showed up on the Jones witness list when it suddenly intensified.
When the two sides will begin engaging in this debate remained uncertain, however, and Lott was doing little to clarify. Secluded in Mississippi over the holidays, he returned to the Capitol yesterday but went out of his way to elude reporters by entering through a back door.
Lott planned to meet with key GOP senators today and with the full caucus tomorrow, but several sources predicted he would not be able to rally enough support for the two-stage plan first crafted by Sens. Joseph I. Lieberman (D-Conn.) and Slade Gorton (R-Wash.).
"The votes don't seem to be there" among Republicans, said a conservative GOP senator who opposes the plan. "I frankly don't see a majority of Republicans for it," said a senior aide to another conservative.
Sens. Chuck Hagel (R-Neb.) and Rod Grams (R-Minn.) joined the opposition yesterday. "If our objective is to examine the facts and evidence and come to an informed, judicious opinion and then vote, then why would we short-circuit the process. What are we afraid of?" Hagel said in an interview.
Even among GOP leaders, there has been more silence than support. Rules Committee Chairman Mitch McConnell (Ky.) has offered qualified backing, but Majority Whip Don Nickles (Okla.) has said nothing and Republican Policy Committee Chairman Larry E. Craig (Idaho) said he wanted a speedy conclusion but felt the House should have a full opportunity to make its case.
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