Judge Orders Lewinsky to Cooperate
Washington Post Staff Writer
Sunday, January 24, 1999; Page A1
A federal judge acting at the request of independent counsel Kenneth W. Starr ordered Monica S. Lewinsky yesterday to talk with House prosecutors, igniting hours of testy debate and further polarizing the Senate at a decisive moment in President Clinton's impeachment trial.
The sudden return of Lewinsky to Washington and the reemergence of Starr as a player in the drama his investigation set in motion threw the trial into an uproar on the day senators completed their questioning of prosecution and defense lawyers. Indignant White House attorneys and equally incensed Democratic senators assailed House Republican "managers" for trying to interview Lewinsky, a move they defended as proper.
As the opening stages of the trial ended, Republican leaders maneuvered to unify their caucus to block Democratic efforts to bring the proceedings to an abrupt halt this week and announced a plan to submit written questions to Clinton. But the White House immediately declared that the president will answer no more inquiries about the matter, leaving it to his lawyers instead.
After a one-day break, the Senate is scheduled to begin considering Monday whether to call witnesses as prosecutors have asked or dismiss the case as Democrats are demanding. With Lewinsky at the top of their list, prosecutors won the right to prepare for her possible testimony by enlisting Starr to enforce an immunity agreement requiring her cooperation. Chief U.S. District Judge Norma Holloway Johnson ruled in the morning that Lewinsky must submit to a meeting with House prosecutors or "forfeit her protections under the immunity agreement" she struck with Starr last July to avoid prosecution.
By mid-afternoon, the 25-year-old ex-White House intern whose affair with Clinton started it all arrived here from Los Angeles, where months ago she fled the scandal. Wearing a dark baseball cap and jostled by a throng of news cameras, Lewinsky retreated to the Mayflower Hotel to prepare for a likely session with prosecutors today.
Because they consider it an informal meeting, the managers refused to provide Clinton's team a transcript of their session. Starr's office said it would make Lewinsky available to the White House separately, but the president's aides declined. Sources said the prosecution team also planned to interview former Clinton consultant Dick Morris today.
The propriety of the Lewinsky interview dominated the nearly five hours of debate on the Senate floor yesterday, with many of the 56 questions from senators focused on the unexpected controversy. In its rules for the trial, the Senate deferred the question of whether it would hear testimony until this week, but the managers maintained nothing prevented them from talking with prospective witnesses, particularly given that none of them has ever met her.
"If you have a witness that you're going to produce, you have a right to prepare that witness," Rep. Bill McCollum (R-Fla.), one of the managers who plans to meet with Lewinsky, told the senators. "It's as plain and simple as that. . . . As a matter of fact, we think we would have been incompetent and derelict . . . if we hadn't talked to her."
White House counsel Charles F.C. Ruff told the Senate that it was anything but simple, if for no other reason than Starr's involvement held the threat of jail over Lewinsky's head if she did not cooperate.
"Can we really say that it's just normal, just okay to have one side using the might and majesty of the independent counsel's office threatening a witness with violation of an immunity agreement if she doesn't agree to fly across the country and meet for this friendly little chat?" Ruff asked with a dose of sarcasm. "I think not."
All but one of the 45 Senate Democrats signed a letter to prosecutors protesting the move as a violation of the spirit of trial rules, while Sen. Robert C. Byrd (D-W.Va.) fired off his own, more acerbic complaint. As the proceedings ended for the day yesterday afternoon, Sen. Tom Harkin (D-Iowa) jumped to his feet to try to ask Chief Justice William H. Rehnquist, who is presiding over the impeachment trial, to overturn Johnson, but was ruled out of order. Harkin then rushed after the chief justice as he was leaving the Senate chamber to hand him a letter seeking his intervention, only to miss him and hand it to a clerk instead.
Starr got involved at the request of the prosecutors, who were rebuffed when they asked Lewinsky's lawyers to allow them to meet with her. Lewinsky's immunity agreement requires her to "testify truthfully" in any "congressional proceedings" and to "make herself available for any interviews upon reasonable request."
Her lawyers contended this did not cover interviews for the House managers, but Johnson disagreed after an emergency hearing Friday evening, ordering Lewinsky to "allow herself to be debriefed by the House Managers, to be conducted by the Office of the Independent Counsel if she so requests, or forfeit her protections under the Immunity Agreement between Ms. Lewinsky and the OIC."
Starr said he was simply fulfilling his responsibility under the law that authorizes his office to investigate the president and advise Congress of any potentially impeachable offenses. "We're, as I see it, duty-bound to assist the House of Representatives and their managers in the process," Starr said outside his home.
His aides complained that he was being unfairly blamed for an action he did not initiate. "We are just the intermediary here," said spokesman Charles G. Bakaly III. "Monica has a contractual immunity agreement. We're in the middle on this."
Either way, it put Starr back in the middle of the debate on the floor, as the president's lawyers seized on his intervention to revisit many of their grievances against his long investigation of the Clintons. David E. Kendall, the first family's private lawyer, referred to the court action as the "remarkable occurrence involving the independent counsel," pausing to pronounce the word "independent" with scorn dripping in his voice.
House managers want to question Lewinsky about several key conflicts in the perjury and obstruction-of-justice case against the president. Among other things, they want to ask her about the dispute over who initiated the hiding of gifts that had been subpoenaed in the Paula Jones lawsuit, herself of the president's personal secretary, Betty Currie, presumably at Clinton's direction.
Prosecutors also want to ask Lewinsky about Clinton's suggestion that she file an affidavit to get out of testifying in the Jones lawsuit, the statement in which she falsely denied their relationship. And they want to quiz her about the job search orchestrated by Clinton's friend, Vernon E. Jordan Jr., that produced a position in New York at the same time she was signing her false affidavit.
Lewinsky is not the only witness prosecutors have contacted sources said they have talked with four or five potential witnesses but because of her immunity agreement, she is the only one they have leverage over. Rep. Asa Hutchinson (R-Ark.), one of the managers, said yesterday that he met with Jordan's attorney, William Hundley, but was rebuffed in an attempt to interview him.
Even if they proceed with the Lewinsky interview today, however, the managers still must persuade the Senate to agree to a formal deposition under oath and then, after that, win a majority vote to subpoena her to testify in the Senate chamber.
The flare-up over Lewinsky came on the final day set aside for senators to pose questions of the prosecution and defense. While much of the discussion covered the same evidentiary and constitutional ground as the Friday's questioning, some of the queries were more pointed and the senators appeared to be using the lawyers on both sides as proxies in their own shadow debate over the case. They asked about everything from the impact that acquittal could have on military morale to how the case compares with then-President Bush's pardon of Defense Secretary Caspar W. Weinberger.
Both sides used the opportunity to score a few more points. Ruff tweaked prosecutors for misstating a line from grand jury testimony that made it seem as if Clinton planned early in the scandal to "blast Monica Lewinsky out of the water" when in fact it was Morris who said that.
Yet Ruff also was placed in the position of defending Clinton's motives before a skeptical audience. He insisted, for example, that the DNA test on Lewinsky's blue Gap dress was not the reason the president reversed himself last August and finally admitted their affair. And he maintained that Clinton sent an $850,000 check to Jones to settle her dismissed sexual harassment case not because it had any merit but simply because he no longer had the time or energy to deal with it.
Lead prosecutor Henry J. Hyde (R-Ill.), recognizing that he is unlikely to win the two-thirds vote necessary for conviction, took the lectern more frequently yesterday to make impassioned appeals to vindicate his case and ignore the polls showing strong public support for acquittal.
"We're not delegates who are sent here to weigh our mail every day and then to vote accordingly; our work here is not an ongoing plebiscite," he said. Some issues are of such "transcendent importance that you have to be willing to lose your office over."
For him, Hyde added, this is one. "Equal justice under the law is what moves me and animates me and consumes me," he said. "And I'm willing to lose my seat any day in the week rather than sell out on those issues. Despite all the polls and the hostile editorials, America is hungry for people who believe in something. You may disagree with us, but we believe in something."
Yet the prosecution message was somewhat muddled by another manager, Rep. Lindsey Graham (R-S.C.), who said it remained an open question whether Clinton deserves removal, noting that "impeachment is equivalent to the political death penalty and every felony doesn't allow you to have the death penalty."
Graham, who has been the most openly conflicted about the case among the prosecution team and voted against one of the articles of impeachment in the House, agreed that the Senate should consider the impact on society of a conviction. "I know how hard that decision is," he said. "And it's always been hard for me. And it's never been hard to find out whether Bill Clinton committed perjury or whether he obstructed justice. That ain't a hard one for me. But when you take the good of this nation, the upside and the downside, reasonable people can disagree on what we should do."
That seemed to alarm some of his fellow managers, who made sure to use later questions to clarify. "Yes, reasonable minds can differ on this case as to whether the president should be removed from office," said Rep. James E. Rogan (R-Calif.). "But reasonable minds can only differ if those reasonable minds come to the conclusion that enforcement of the sexual harassment laws in this country [is] less important than the preservation of this man in the office of the presidency.
"And that is the ultimate question that this body is going to have to answer. What is more important: the survival of Bill Clinton's presidency in the face of perjury and obstruction of justice or the protection of the sexual harassment laws . ..."
But it was too late. The White House and Democrats cheerfully seized on Graham's formulation to argue that any doubt should be weighed in the president's favor. "If indeed reasonable people can differ," Ruff asked the Senate, "doesn't that mean by the very statement of that proposition that this body cannot . . . legitimately determine that he ought to be removed from office?"
Staff writers Juliet Eilperin, Susan Schmidt and Dan Morgan contributed to this report.
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