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TRIAL JOURNAL
Threat From White House: Another Age of Discovery

David Kendall, Reuters Clinton lawyer David Kendall on the Senate floor Tuesday, arguing against the House prosecutors' motion to subpoena witnesses. (Reuters)

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  • By David Von Drehle
    Washington Post Staff Writer
    Wednesday, January 27, 1999; Page A10

    Now we reach the fork in the road.

    Three weeks ago, when the Senate set forth on the trial of President Clinton, they knew eventually they would reach this fork. In one direction, the choice of most Democrats: a quick vote on the president's fate. In the other direction, the Republican preference: the calling of witnesses, the search for new facts . . . and who knows what all else.

    Along the way, they hoped that maybe, somehow, when they arrived they'd find that someone had built a nice smooth expressway where the fork used to be.

    Instead, they found Clinton attorney David E. Kendall, that natty, slightly prim $400-an-hour man who speaks like he's running up the clock. Kendall delivered about $600 worth from the lectern yesterday but it could be boiled down to this:

    If you call witnesses, we'll fight back. And that could take a long, long time.

    Was he serious? Was he bluffing? Might there be some middle ground, a very few witnesses on very limited terms -- Monica minus the sex, for example, or Vernon E. Jordan Jr. minus Betty Currie -- without reaping a whirlwind? What if, as discussions suggested at the close of the day, the Senate promised to end the trial by a certain date?

    Well, he looked serious. But given the gambling metaphors salted into his speech he also seemed like a man who has bluffed before.

    It's not often that you see a civilian threatening the United States Senate. Most people feel intimidated simply to sit in a visitors' gallery. The Senate is designed to project power, from the smooth marble to the glistening hardwoods to the smooth and glistening blue, gray and brown suits, the blue, white and blue-white shirts, the red, blue and yellow ties, the yellow, red and blue dresses. The senators go from their private offices down their private corridors to their private elevators.

    This is, however, no ordinary time. The threat was delivered like this:

    "I want to be candid with you," said Kendall, who could pass for a senator (suit gray, shirt blue, tie red). "I don't want to be alarmist. I want to be honest, though, about what opening the door to discovery will mean for this process. . . .

    "Should the Senate decide to authorize the House managers to call additional witnesses . . . we will be faced with a critical need for the discovery of evidence useful to our defense. . . . "

    He said this in a tone of infinite reason. But, to borrow a formulation that has been reworked again and again in this trial: When someone tells you he doesn't want to be alarmist, you're about to be alarmed.

    "We have not had access to a great deal -- many thousands of pages -- of evidence which is first of all in the hands of the House managers that they got from the Office of Independent Counsel."

    Thousands of pages? How long will that take?

    And that's not all. "We also need discovery of those other documents, witness testimony transcripts, interview notes -- other materials which may be helpful or exculpatory that are in the hands of the independent counsel."

    Documents, transcripts, notes?

    And that's not all. "We would then need to be able to depose relevant witnesses. We'd need to know whether the witness depositions that the House managers had taken would need to lead to other depositions."

    Depositions on top of depositions.

    And that's not all. "Only at that point, when we've had discovery of our witnesses, will we be able to identify the witnesses we might want to call."

    Witness after witness.

    How could the Senate possibly deny such a meticulous, detailed -- and did he happen to mention long -- process? As many senators from both parties have noted in recent days, it would be nearly impossible to tell the president he can't have whatever he needs to defend himself.

    "Given what is at stake," Kendall said with the barely veiled menace of a thug stroking a tire iron, "I think fundamental fairness requires fair discovery. We will be expeditious, but in the event the genie is out of the bottle, we need time; we need access to defend the president in the way any client ought to be defended."

    And who will be to blame? "Any delay in the process necessary for us to have fair discovery is on their heads," Kendall declared, and he gestured to the table where the House impeachment managers sat.

    By day's end, everyone was predicting that the Republicans will indeed vote to call witnesses today. So history may learn how much of the threat was real and how much was bluff. Yet the House managers did not look very happy. The witness jackpot could turn out to be pretty small.

    Rep. Asa Hutchinson (R-Ark.) recalled the grand vision he'd had while preparing for the trial -- 14 or 15 witnesses, testifying in the well of the Senate, undergoing cross-examination. One by one they would paint a damning picture of the president.

    Instead, in the words of chief manager Rep. Henry J. Hyde (R-Ill.): "a pitiful three," and only for depositions. Monica S. Lewinsky, of course, and presidential friend Vernon Jordan, and courtier Sidney Blumenthal.

    Betty Currie, the presidential secretary who facilitated the affair, will not be called. Perhaps the Republicans had visions of witnesses past -- Joseph Welch, Fawn Hall, Oliver L. North -- who became sympathetic figures under congressional grilling.

    When Kendall finished, it was a grumpy Rep. James E. Rogan (R-Calif.) who rose to respond. The lawyer, he said, is "complaining and griping." Kendall speaks out of both sides of his mouth. He argued one thing during the House impeachment hearings and another thing here in the Senate.

    "You can't fashion the argument depending on what the result is being sought," Rogan said.

    But surely that's what the $400 an hour is for.

    © Copyright 1999 The Washington Post Company

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