By Peter Baker
President Clinton's personal attorney asked independent counsel Kenneth W. Starr yesterday for a chance to review any report detailing possibly impeachable offenses before it is sent to Congress and suggested he might challenge the legal legitimacy of such a report.
David E. Kendall, who has represented Clinton through years of Starr's investigations from the Whitewater land development project in Arkansas to Monica S. Lewinsky said prosecutors should give him an advance copy of the report so that he can have a week to prepare a rebuttal that would be submitted at the same time to the House of Representatives.
"You have had unlimited resources at your command and no practical restriction on your power to investigate every aspect of the President's life for the past four and one half years," Kendall wrote in a letter addressed to Starr and his deputy, Robert J. Bittman. "Elemental fairness dictates that we be allowed to respond to any 'report' you send to the House simultaneously with its transmission."
Nothing in the independent counsel statute directly calls for an advance copy of an impeachment report to be provided to the president targeted. The Kendall letter was faxed to news organizations yesterday evening and no one answered at Starr's office to provide a response.
Starr's office has been preparing a report covering more than 300 pages outlining possible offenses that Clinton may have committed in connection with his affair with Lewinsky and his actions during the Paula Jones sexual harassment lawsuit, such as perjury and obstruction of justice.
White House officials are increasingly worried that the report could be written in such a damning tone and include such salacious sexual details that it would undermine the president's already eroding political support. In recent weeks, Clinton advisers concluded they need their own simultaneous reply to present events in their most innocent light and to provide congressional defenders with ammunition to counter an impeachment drive.
The strategy underscores the unprecedented nature of the current situation, in which there are few procedural guideposts for anyone involved, including the president, prosecutors and lawmakers. The Clinton camp signaled that it may dispute Starr's right even to send a report, as it is currently envisioned, in the first place.
The law authorizing Starr's office says: "An independent counsel shall advise the House of Representatives of any substantial and credible information . . . which may constitute grounds for an impeachment." In his letter, Kendall argued that language requires a dispassionate presentation of information, not a report that interprets facts or makes recommendations. "Nothing in that statute authorizes your office to prepare a 'report' to the House that purports to summarize and analyze evidence," Kendall wrote.
Citing the precedent of Judge John J. Sirica in reviewing the Watergate special prosecutor's report before it was sent to Congress, Kendall proposed that both Starr and the president submit their drafts to a judge who would review them before passing them on to the House. Kendall suggested sending them to "the Chief Judge," presumably a reference to Chief U.S. District Judge Norma Holloway Johnson, who has been overseeing the seven-month grand jury investigation into the Lewinsky matter.
If Starr does not agree to such a procedure, some Clinton advisers have suggested the White House could make a similar request to Congress. Under this scenario, the White House could ask House Judiciary Committee Chairman Henry J. Hyde (R-Ill.) not to make public any portion of Starr's report until the president's lawyers have a chance to submit a reply.
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