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Second-Guessing Clinton's Defense

President Clinton's lawyer, David Kendall, on Capitol Hill last week. (Robert A. Reeder - The Post)

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Clinton Lawyers Hit Back (Washington Post, Sept. 13)

Kendall's Sept. 11 Remarks

Key Player Profile: David Kendall

By Ruth Marcus
Washington Post Staff Writer
Wednesday, September 16, 1998; Page A31

The last four years have cost President Clinton more than $5 million in legal bills. The House is about to launch impeachment proceedings against him. Independent counsel Kenneth W. Starr has not ruled out the notion of a criminal prosecution. And Clinton's lawyers -- who fanned out on a four-network offensive during the Sunday talk shows -- have themselves become the focus of attack from furious congressional Democrats demanding an end to legal "hairsplitting."

All of which raises the question: How much of the blame for their client's predicament rests with the president's lawyers, and in particular, his chief outside counsel, David E. Kendall, the leading proponent of the "give-no-inch, Clinton's testimony was 'legally accurate' " approach that has provoked so much anger since the Starr report was released.

Former White House special counsel Jane E. Sherburne said the president's predicament reflects Kendall's criminal lawyer approach. "David is representing the personal interests of Bill Clinton and those interests are different than the interests of the president of the United States or of the country," she said. "He's always needed a political person who can help temper his defensive instincts."

Second-guessing the strategic choices made by attorneys and their clients behind closed doors is a popular sport among Washington criminal defense lawyers, and some of the city's leading practitioners -- along with a good number of those elsewhere -- were busily engaged in that activity yesterday.

They faulted Kendall for not having his client come forward with the truth earlier, for letting him testify before the grand jury, for allowing him to dig himself into even deeper legal trouble with his grand jury answers, for inflaming Starr with repeated attacks, and for pursuing a legalistic argument -- that receiving oral sex did not constitute a sexual relationship -- that found few takers.

"If you are going to testify and come clean and tell the truth, you tell it all," said one prominent criminal defense lawyer here who, like other critics, was unwilling to be quoted by name. "You poison the testimony by this silly word game. . . . It's not effective and it's not correct."

Clinton's continuing assertion that his testimony was "legally accurate," said another lawyer, "is classic Williams & Connolly," referring to the unyielding, scorched-earth strategy for which Kendall's firm is famed.

Although Clinton faces the threat of criminal prosecution, his larger and more immediate problem is the looming impeachment proceedings, and Kendall's approach may have inflamed rather than calmed lawmakers, several lawyers said.

"It's this parsing that is like fingernails on a chalkboard -- don't do it," Sherburne said. "I don't understand a legal strategy that doesn't appreciate that."

Even if Clinton would expose himself to some risk by dropping his legalistic approach, one lawyer said, "At some point, the lawyer has to help the guy look at the bigger picture, and Clinton's bigger picture is that he needs to save himself politically before he can save himself from the threat of prosecution."

At the same time, lawyers said, the continuing assault on Starr's office may not help the president's legal position. "What the hell do you gain by attacking those people?" asked one defense lawyer involved in the Lewinsky investigation. "They're the ones who've got the power."

Indeed, just about the only one not participating in the second-guessing was Kendall himself. "Thank you for calling, but there's really nothing I can say," he said.

Some cautioned against assigning fault to the lawyers. They noted that it was impossible to know whether Clinton had heeded their advice and, in fact, on one of the main areas of criticism -- allowing Clinton to go to the grand jury -- sources familiar with the decision said Kendall strenuously argued against taking that risk, only to be overruled by his client.

They said that legal advice can only be as good as the information on which it is based, and that it was clear the president had been misleading and dishonest with his lawyers as well as with other aides.

And they said that the president of the United States is a uniquely difficult client to advise, particularly as he tries to navigate the narrow path between avoiding criminal prosecution and convincing Congress not to remove him.

"Whenever something goes wrong, it's a lot easier to blame the lawyers," said Washington lawyer Lawrence Barcella. "And sometimes good lawyers will take the blame even where blame is not warranted. One of the things you can do for a client is fall on your sword."

"It's very easy to Monday-morning quarterback," said New York lawyer Bruce Yannett. "It may well be that if Congress decides not to impeach the president . . . and he's never criminally prosecuted, that the strategy is brilliant, and the fact that some members of Congress are being critical is meaningless if at the end of the day, the president navigates his way through the dilemma he's facing."

But others, including some close to the White House, questioned a number of the legal moves. They questioned whether Clinton should have settled the case early on and avoided the mess that ensued, or at the very least should have gotten rid of the case after losing at the Supreme Court.

They asked whether Robert S. Bennett, Clinton's lawyer in that case, failed to know enough about the president's relationship with Lewinsky -- which appears to have been the subject of at least informed speculation among the White House inner circle -- to protect the president from himself when he was questioned by Paula Jones's lawyers in the civil case last January.

In fact, Bennett -- in the view of some lawyers -- did a better job than did the Jones lawyers in pinning down Clinton's denial that he had any sexual contact with Lewinsky, reading to the president from Lewinsky's affidavit denying any sexual encounter with Clinton and having him vouch that the statement was true.

"I think that Bob Bennett's representation qualifies as among the worst legal blunders of the 20th century," said Harvard Law School professor Alan Dershowitz. "You always know not to believe your client. The first rule of any smart lawyer when your client tells you he didn't have sex with somebody is . . . if you don't know, you act like it happened." Bennett was traveling yesterday and could not be reached for comment, but he has confided to colleagues that he urged Clinton to somehow settle the Jones case.

Once Kendall inherited responsibility for the situation when it moved into the criminal arena, lawyers said, the president might have been better off, in retrospect, had he attempted to preempt the matter by admitting to an improper relationship with Lewinsky early on rather than strenuously denying it and coming clean only when backed into a corner by DNA evidence and other facts.

Some said that it was entirely foreseeable that Lewinsky would reach an immunity deal with Starr and that Starr would eventually subpoena the president.

They said that Kendall should have mounted a stronger effort to dissuade Clinton from appearing before the grand jury. Once he failed, they said, he should have taken the gamble of having Clinton express more contrition rather than risk additional accusations of perjury.

And with the prospect of having Clinton's videotaped testimony made public, some asked whether Clinton should have simply gone in person to the grand jury rather than risk having his testimony eventually broadcast, a potentially far more damning spectacle than a few seconds video of Clinton entering the courthouse.

But Dershowitz said that he had sympathy for Kendall's contention that Clinton had not committed any crimes. "Kendall can win this perjury and obstruction case in front of a jury and it requires malpractice for a criminal lawyer to admit that his client committed a crime that you believe a jury would not convict him of," he said.

Although there has been tension between Clinton's legal and political teams, one of the president's political advisers yesterday came to Kendall's defense. "David Kendall's the best I've ever seen. I think he's done a hell of a job," James Carville said. "You have a bunch of K Street jerks second-guessing someone they don't know very much about and they have the added benefit of knowing that Mr. Kendall will never reveal what he knows."

Staff writer Susan Schmidt contributed to this report.

© Copyright 1998 The Washington Post Company

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