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Clinton Defense Blasts Impeachment Evidence

Cheryl Mills, CSPAN Deputy White House counsel Cheryl D. Mills defends the president. (C-SPAN)

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  • By Peter Baker
    Washington Post Staff Writer
    Thursday, January 21, 1999; Page A1

    In a chart-by-chart, charge-by-charge rebuttal to the prosecution, White House lawyers deconstructed the allegations against President Clinton yesterday to try to show that they amount to "trivial" disputes and distorted evidence overblown into a constitutional crisis.

    The defense team devoted the second day of its opening arguments at Clinton's Senate impeachment trial to poking holes in the case against him, insisting on the importance of the "inconvenient details" left out by House Republican "managers" and ridiculing their fixation on "nitpicking" disagreements between the testimony of the president and former White House intern Monica S. Lewinsky.

    The Clinton lawyers also appealed to the Senate to heed public sentiment against conviction rather than throw the country into the "darkness of endless recrimination." And with pointed symbolism, they rejected the prosecution argument that the president's conduct during the Paula Jones sexual harassment lawsuit undermined her rights as a woman and the cause of civil rights generally.

    "I'm not worried about civil rights, because this president's record on civil rights, on women's rights, on all of our rights is unimpeachable," said deputy White House counsel Cheryl D. Mills, the first woman and the first African American to address the senators at the trial. "I can assure you that your decision to follow the facts and the law and the Constitution and acquit this president will not shake the foundation of the house of civil rights."

    The concentration on the details of the perjury and obstruction of justice charges through four hours of presentations yesterday was aimed in part at demonstrating that the president concedes nothing, even as his defenders also argue that the allegations do not constitute grave enough offenses against the state to warrant his removal from office.

    During the proceedings that led to his impeachment by the House last month, the White House rebuttal on the evidence was largely overshadowed by the constitutional case it mounted. As a result, many Republicans and even some Democrats concluded that Clinton was all but admitting the allegations and only disputing their importance, a situation his advisers resolved to reverse in the Senate.

    In attacking the evidence yesterday, White House lawyers knew they risked being accused again of relying on hair-splitting legalisms but they made a spirited defense of such tactics as necessary and proper to counter the "legal mumbo-jumbo" of the prosecutors.

    "To the extent that we have relied on overly legal or technical arguments to defend the president from his attackers, we apologize to him, to you and to the American people," special counsel Gregory B. Craig told the senators. But he added, "To accuse us of using legalisms to defend the president when he's being accused of perjury is only to accuse us of defending the president. We plead guilty to that charge and the truth is that an attorney who failed to raise these defenses might well be guilty of malpractice."

    Warning that senators were about to get "more than 100 percent of your minimum daily requirement for lawyering," Craig opened the day's proceedings with an analysis of the charge that Clinton committed perjury before independent counsel Kenneth W. Starr's grand jury last August, while Mills followed by examining two of the allegations included in the obstruction of justice count. David E. Kendall, the president's private attorney, will handle the remaining obstruction issues today before former senator Dale Bumpers (D-Ark.) delivers closing remarks.

    The prosecution responded yesterday with another blizzard of fact sheets contrasting each "White House Claim" with "The Truth" and managers openly scorned the president's lawyers for what they called a "Swiss cheese" strategy of looking for small holes in the case against Clinton.

    Rep. Lindsey Graham (R-S.C.) warned that the White House defense might even prompt prosecutors to expand their proposed witness list. "The more this is talked about as a bunch of innocent statements and misunderstandings, the more likely we are to show intent and pattern," Graham said.

    Six years to the day after he took office and a year to the day after he learned that Starr was investigating the Lewinsky matter, Clinton spent yesterday out of town pitching the policy agenda laid out the night before during his State of the Union address, even as a new round of polls showed that both his approval ratings and opposition to conviction remained strong.

    Indeed, his persistent strength with the public and his performance in the House chamber Tuesday night convinced one of his harshest conservative critics that acquittal is inevitable, if regrettable. "He hit a home run in his speech," Pat Robertson said on "The 700 Club," his television show. "Clinton's won. They might as well dismiss the impeachment hearing and get on with something else because it's over as far as I'm concerned."

    Former president George Bush, the Republican ousted by Clinton in 1992, made no direct comment on the trial as he appeared at the Capitol for a lecture less than an hour after yesterday's trial proceedings ended. But he lamented the "deficit of decency" in Washington politics today.

    "I confess that the lack of civility in our political debate and official dealings with one another concerns me," he told a roomful of lawmakers. "I worry too about sleaze, about excessive intrusion into private lives. I worry about once great news organizations that seem to resort to tabloid journalism, giving us sensationalism at best and smut at worst."

    On the Senate floor yesterday, Craig and Mills played extended videotaped excerpts of the testimony of former prosecutors who told the House Judiciary Committee that the charges of perjury and obstruction of justice would never be brought in a normal courtroom based on the evidence collected by Starr.

    Clinton too made a cameo appearance as Craig used a 14-minute segment of his Jan. 17, 1998, deposition in the Jones case to show the senators the protracted debate over the definition of "sexual relations" that preceded his answers to questions about his affair with Lewinsky.

    Craig, 53, a law school friend of the Clintons who joined the defense team last fall, chided managers for continuing to cite the president's testimony in that deposition even though the House rejected a separate article of impeachment based on it. The managers have argued that Clinton put his Jones deposition at issue by reaffirming it during his grand jury appearance seven months later, but Craig insisted that the president, in fact, did not maintain that his civil testimony was entirely truthful.

    To unravel the grand jury perjury count, Craig highlighted the most picayune of the allegations cited by House managers. In particular, he scoffed at claims that Clinton lied when he testified that the affair did not begin until 1996 even though Lewinsky swore it started in November 1995 and that he lied when he described their sexual encounters as occurring "on certain occasions" when in fact there were 11.

    Craig essentially enlisted Starr as an ally to make the point, noting that even the independent counsel did not call such statements perjurious. "Apparently the managers believe that Ken Starr and his prosecutors have been simply too soft on the president," Craig said sarcastically. The managers' allegations are "frequently trivial, almost always technical, often immaterial and always insubstantial."

    With a dictionary on the defense table, Craig insisted that it was reasonable for Clinton to tell the grand jury that the definition of sex used in the Jones deposition did not cover the oral sex that Lewinsky said she performed on him. And he defended the president's attempt to quarrel with prosecutors during that session over the meaning of the word "is" when discussing whether he told the truth about his affair during the Jones deposition.

    "The president makes a political mistake here and gives in to his instinct to play his own lawyer, to be his own advocate," Craig said. "You may find it frustrating. You may find it irritating when you watched him do this. But he is not committing perjury. He is committing the offense of nitpicking and arguing with the prosecutors."

    With the perjury case founded on nuance and he-said-she-said testimony, Craig said, convicting the president on Article I would forever weaken the presidency and urged them not to "inject a poison of bitter partisanship into the body politic which like a virus can move through our national bloodstream for years to come."

    The right recourse, he said, is to leave the president to his fate in the criminal justice system once he leaves office. "If you convict and remove President Clinton on the basis of these allegations," he said, "no president of the United States will ever be safe from impeachment again. And it will happen and people will look back at us and they will say, 'We should have stopped it then, before it was too late.'"

    Mills, 33, who has worked for the Clinton White House since its beginning, made what amounted to her public debut yesterday before the Senate. A powerful behind-the-scenes player in the counsel's office, Mills provided what Democrats hoped was a not-too-subtle contrast to the 13 white men who make up the prosecution team.

    While she spent most of her time discussing the obstruction charges, she concluded her time on the floor with a direct riposte to the GOP managers who last week cast Clinton's conduct as an affront to civil rights protections for women. "I can't let their comments go unchallenged," she said.

    Noting that Clinton's grandfather owned a store catering to African Americans when other whites would not, Mills said the president is a true supporter of civil rights despite his personal frailties. Civil rights was "never at the heart of the Jones case," she said, noting that Jones "had her day in court" only to have her lawsuit thrown out. (Left unmentioned was that Clinton settled the case for $850,000 as an appeals court considered overturning the dismissal.)

    Comparing Clinton to Thomas Jefferson, John F. Kennedy and Martin Luther King Jr., Mills said, "They were not perfect men. They made human errors. But they struggled to do humanity good."

    On the specifics of Article II, Mills challenged the assertions that Clinton obstructed justice by directing his secretary, Betty Currie, to retrieve gifts from Lewinsky to avoid turning them over to Jones's lawyers in response to a subpoena and that the president later tried to influence Currie's testimony by calling her to the White House the day after his Jones deposition and leading her through a series of false statements.

    Mills relied heavily on Currie's own testimony that she picked up the gifts and hid them under a bed at Lewinsky's suggestion and that she never felt pressured when the president recited his false version of his contacts with the former intern.

    To believe otherwise, Mills said, would be to buy into the managers' suggestion that Currie was merely a Clinton loyalist who shaded the truth, when in fact she was firm in her recollections on multiple occasions. "Of course she's loyal," Mills said. "But it is, may I say, an insult to Betty Currie and to millions of other loyal Americans to suggest that loyalty breeds dishonesty."

    Staff writer Juliet Eilperin contributed to this report.

    © Copyright 1999 The Washington Post Company

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