Experts Say Both Sides Cross Threshold of Propriety
By Ruth Marcus
Civil litigation can be a nasty business. But in the lengthy annals of legal nastiness, the conduct of both sides in the Paula Jones sexual harassment lawsuit against President Clinton has been particularly unpleasant and some legal experts say the lawyers have crossed over the line of appropriate conduct.
In the last few weeks, Jones's lawyers have splattered onto the public record an array of allegations about Clinton's involvement with other women apparently unrestrained by U.S. District Judge Susan Webber Wright and despite the consensus among legal experts that little, if any, of the evidence stands any chance of being admitted at a trial. A particularly sensational new accusation came Saturday, when the Jones lawyers included in a filing an unsubstantiated, third-party allegation that Clinton had raped a woman 20 years ago.
For its part, the Clinton team failed to turn over letters from former White House aide Kathleen E. Willey that were requested by the Jones lawyers in the discovery process, even though it managed to release to the media 15 letters from Willey the morning after she alleged on "60 Minutes" that the president groped her near the Oval Office.
The Clinton team's explanation that Jones's lawyers didn't get the documents because they should have asked for them from the White House rather than from Clinton personally gives new meaning to the word legalistic. Some experts said it could be a violation of the rules that govern how documents are supposed to be provided in civil cases.
"There's enough fault here to go around, and this is a case in which the judge is partly responsible," said George Washington University law professor Stephen Saltzburg. "The judge has permitted the lawyers to make her court look silly."
Jones's request to Clinton last December asked for "all documents concerning Kathleen Willey," including telephone logs or other communications, and directed him to turn over "not only the documents and things in your immediate possession, but also those over which you have custody or control." Clinton's lawyers objected, saying the request was intended to embarrass the president, but added that even so, "President Clinton has no documents responsive to this request."
"A federal judge would never tolerate that kind of argument," New York University legal ethics expert Stephen Gillers said. "The documents were obviously within the power of the president to release, and notwithstanding that he's being sued in his personal capacity, he has control over them and could have produced them."
Said Debra S. Katz, a lawyer who handles sexual harassment cases on the side of workers, "I think it's absolutely improper. The question was asked in such a way that these documents clearly should have been produced. The Clinton folks were engaged in game-playing in not turning it over and there's no excuse for it."
But some other lawyers noted that the Jones team was not harmed by Clinton's failure to produce the documents because they were not damaging to the president.
Said Philadelphia management lawyer Mark Dichter, "Is it a big deal? Probably not. They are letters which, if anything, are favorable to them, so they'd want to produce them."
Robert S. Bennett, Clinton's chief attorney in the Jones case, has not returned repeated messages about his handling of the matter. His partner, Mitchell S. Ettinger, issued a statement yesterday calling the allegation of misconduct "patently false" and blaming the Jones team for not sending its request to the White House. In other instances, Ettinger said, the Jones lawyers had specifically subpoenaed the White House, which he called proof that they understood the distinction between a request to the White House and one to the president as an individual.
"This latest allegation is nothing more than a last-ditch venomous effort by Ms. Jones's legal team to salvage her legally defective claims against Mr. Clinton," Ettinger said.
Indeed, legal experts said the Jones lawyers went overboard in putting some of the new allegations against Clinton into the public record. That's because much of the evidence about his alleged relations with other women is unlikely to be admitted in a trial since it involves purportedly consensual activity, took place long before or after his 1991 encounter with Jones, or both.
Referring to Saturday's inclusion of the rape allegation, Katz said, "It's appalling and the judge should be calling those lawyers in and seriously reining them in. It is completely inappropriate to put forward allegations that had been denied, that are unsworn. . . . This is obviously another attempt to put in the headlines allegations that this president is a predatory, out-of-control fiend. This is not reasonably related to the allegations that Jones has to prove in her case."
Said Dichter, "It's hard to see how that . . . is done for any reason other than trying to taint and smear him."
The Jones lawyers struggled with the issue themselves. "It was a close call internally as to whether we ought to file it," said Jones lawyer T. Wesley Holmes.
But in the end, he said, they decided the allegation was relevant to their argument that Clinton has engaged in a "vast enterprise" to suppress evidence because they believed the purported victim was frightened into silence. "There's another example of where there's allegedly evidence we ought to be able to get that we haven't been able to because of intimidation," Holmes said.
Staff writer Peter Baker contributed to this report.
© Copyright 1998 The Washington Post Company