By Charles R. Babcock and Ruth Marcus
The air war consists of the unusually fierce public attacks on Starr by Clinton's surrogates and by David E. Kendall, Clinton's private lawyer. Kendall broke his traditional public silence Friday when he accused the independent counsel of "out of control" leaks; he followed up Monday with a motion seeking to have Starr's office held in contempt of court.
The ground war is being fought largely outside public view, as Clinton's lawyers scramble to obtain information about the course of Starr's investigation and the dangerous new front that opened just three weeks ago with the allegations about Clinton and former White House intern Monica S. Lewinsky.
The two-pronged strategy -- attack in public and investigate in private -- is designed for the special needs of a client for whom political concerns may be as important as legal ones -- and whose ultimate fate may be decided not in a court of law, but in Congress, a venue far more responsive to public opinion.
"He's got a client whose political exposure is probably as great, if not greater than, his legal exposure," said Bruce Yannett, a former federal prosecutor who worked on the Iran-contra investigation. "He's got to defend this case in a way that you don't defend a normal criminal case."
In the normal situation, defense lawyers whose clients are under criminal investigation do not go out of their way to antagonize prosecutors who have the power to make the final call on whether to indict their clients.
In the Clinton case, it is unclear whether Starr has the constitutional authority to prosecute a sitting president. It is far more likely that Starr would follow the option, set out in the independent counsel statute, of advising the House of Representatives of any "substantial and credible evidence . . . that may constitute grounds for an impeachment."
Because that provision gives Starr wide latitude for judgment, it might be expected that Kendall would want to avoid enraging the independent counsel, as he clearly did with the Friday letter. In an angry response, Starr told Kendall he was not qualified "to lecture me on professional conduct" and said, "Fiercely aggressive representation, including through media grand-standing, cannot be an excuse for smearing a lawyer through reckless allegations."
But a number of criminal defense lawyers said they thought Kendall's approach made sense, since it could help erode public confidence in Starr's investigation, a tactic that could taint any referral he ultimately makes to the House. And they said relations had already so deteriorated between the two camps that Kendall was probably not risking much by further antagonizing the prosecutor.
"I think if you lined up 25 experienced defense lawyers and told them the background facts . . . I don't think you would get a whole lot of quarrel from those 25 over what David Kendall is doing," said Thomas C. Green, a veteran white-collar criminal defense lawyer. "I think you would probably get a resounding endorsement and 'Attaboy, Dave.' "
He said that seizing on the alleged leaks is "just one step in the process" of Kendall's attempt to convince the public that Starr's "pursuit of the president is fundamentally unfair and marked by zealousness and an agenda borne of political considerations."
As Kendall pursues that goal, said criminal defense lawyer Plato Cacheris, "I don't think it matters if Kendall gets Starr angry or not."
While Lewinsky's lawyer might have had an incentive not to antagonize Starr while he tried to negotiate an immunity deal for his client, Cacheris said, "I don't know that they [Clinton's team] have anything to lose. There is an investigation; Starr is going to pursue it presumably until it reaches its fruition one way or another."
That doesn't mean it is likely that Kendall's effort to have Starr's office penalized for leaking is likely to succeed in court. Leak investigations are notoriously unproductive because there are so many potential sources of the information and because neither party to the leak has any incentive to come forward.
Still, said Columbia University law professor Gerard Lynch, a former prosecutor, "There's two wars going on here. There's the war in court and the war in the press, and if you're going to be fighting for the spin on these things . . . it's very important to get the maximum publicity for the view that you shouldn't necessarily trust these leaks, they're a violation of law, they're emanating from a partisan source, and the way to get maximum exposure is to yell as loud as you can."
Meanwhile, the ground war continues as well. White House officials have acknowledged that the offices of both Kendall and White House counsel Charles F.C. Ruff have recommended attorneys to potential grand jury witnesses, including Clinton's personal secretary Betty Currie and White House stewards. They also said Clinton's lawyers have debriefed those attorneys about their clients' grand jury appearances.
For instance, when Kendall attacked Starr's office for allegedly leaking information to the New York Times about Currie's grand jury testimony, Starr responded tartly that the president's defense lawyers "had most if not all" of the information used in the article several days before it appeared.
The White House effort to keep one step ahead of Starr's investigation is a tactic often and properly used by defense attorneys. George Washington University law professor Stephen Saltzburg said "it's absolutely necessary" for Clinton's lawyers to try to learn what witnesses are saying.
"Some people look at Ken Starr and say he has all the aces to play," Saltzburg said. "They don't realize people are being provided lawyers and there's a lot of cooperation. This is a frustrating practice for prosecutors to deal with. They are concerned that the attorney-client privilege -- instead of a shield for a witness -- becomes a screen behind which people can conspire to create false testimony."
The White House has debriefed witnesses in earlier controversies. Jane Sherburne, a former attorney in the White House counsel's office, said she and her colleagues routinely debriefed lawyers for witnesses in the many congressional investigations of Whitewater, the firing of White House travel office workers and the misuse of FBI files.
Robert J. Giuffra Jr., who was chief counsel to the Senate Whitewater Committee, said the White House's ability to monitor the Senate investigation was "a key element in the White House defense of all these various investigations." He added: "What we're seeing here is state-of-the-art white-collar crime corporate criminal defense."
Yannett said that in the Iran-contra investigation, prosecutors assumed the Reagan White House had mounted a similar operation. "We certainly assumed that counsel for the White House was conferring with the lawyers who represented [former national security advisers Robert] McFarlane and [John] Poindexter and the other cast of characters," he said.
Even if they are recommended by the White House or its allies, lawyers have an ethical obligation to represent their clients' interests, not Clinton's, and their clients must approve the sharing of information.
"These people have a right to tell you as much as they have a right to tell Starr," Lynch said of the grand jury witnesses and potential witnesses.
Still, he said, as the White House wages its public relations campaign against Starr, it runs the risk of garnering adverse publicity with its behind-the-scenes intelligence-gathering. "There may be a lot of things that are perfectly legitimate, that are standard practice in the corporate white-collar defense field, that people might look askance on that are unfamiliar with that practice. If you're in what is ultimately a political battle over perceptions, you might want to be careful, follow unconventional tactics for fear the conventional tactics might look bad."
© Copyright 1998 The Washington Post Company