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ANALYSIS
Making Case Fresh Is a Huge Hurdle

Barr,TWP Rep. Bob Barr (R-Ga.) passes the Senate chambers on the first day of the Clinton Senate impeachment trial. (Dudley M. Brooks — The Post)

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  • By Ruth Marcus
    Washington Post Staff Writer
    Friday, January 15, 1999; Page A18

    The goal for House prosecutors making the case against President Clinton yesterday is easy to state but harder to achieve: present the evidence in a manner compelling enough to persuade the jurors to take the next step and hear from witnesses.

    Capturing the attention of a jury is difficult enough in an ordinary courtroom, when jurors are hearing a story fresh, for the first time.

    As the House managers began their opening arguments yesterday, their immediate task was even trickier: They needed to interest senators in a story that has been an unwelcome part of their lives for nearly a year and that they have known in excruciating detail for four months, since the release of the report by independent counsel Kenneth W. Starr.

    Prosecutors in a normal case know that their opening statements are just that a sketch of the facts to be presented, largely through witnesses, in the actual evidence. But in the impeachment trial, the initial skirmishing that started yesterday may represent the managers' only days in court, unless they manage to surmount the unusual hurdle of persuading their jury to hear witnesses.

    They got off to a somewhat rocky, droning and at times defensive start, with the "Groundhog Day"-like repetition of the familiar phrases and arguments that have become a staple of the impeachment proceedings.

    But things perked up later in the afternoon as Rep. Asa Hutchinson (R-Ark.) plunged into a detailed explanation of the obstruction-of-justice charges and Rep. James E. Rogan (R-Calif.) followed with a video-studded analysis of the perjury case and an impassioned plea to hear from those actually involved in the sordid tale of the president's efforts to hide his relationship with Monica S. Lewinsky.

    For a time, however, it looked like déjà vu all over again.

    "We are here," said House Judiciary Committee Chairman Henry J. Hyde (R-Ill.), "as advocates for the rule of law, for equal justice under the law, and for the sanctity of the oath."

    Said Rep. F. James Sensenbrenner Jr. (R-Wis.): "We are here today because President William Jefferson Clinton decided to put himself above the law not once, not twice, but repeatedly."

    Rep. Edward G. Bryant (R-Tenn.) even read a passage almost verbatim from the trial brief the House managers had submitted only three days ago, apparently assuming that senators hadn't bothered to read the document or wouldn't remember it.

    And Sensenbrenner seemed to stumble when he asserted that White House counsel Charles F.C. Ruff had failed to give a direct answer when asked during the House proceedings whether Clinton had lied to the grand jury. The White House quickly fired back with citations to the record in which Ruff had said Clinton "surely did" tell the truth at the grand jury.

    Sensenbrenner also said that Arkansas state employee Paula Jones had been denied merit raises after rebuffing an alleged proposition by then-Gov. Clinton and ultimately was "forced to quit" her job. In fact, Jones received such raises and quit voluntarily several years after the alleged encounter to follow her husband to California.

    Anticipating complaints that the House could have called witnesses itself if it felt the need to hear from them before taking the awesome step of impeaching the president, the two lead-off speakers Sensenbrenner and Bryant devoted part of their arguments not to the facts of the president's actions regarding Monica S. Lewinsky but to the differing roles of the two houses of Congress and the historical practice.

    Sensenbrenner noted that in the 1868 impeachment proceedings against President Andrew Johnson, the House called no witnesses and indeed held no hearings before approving a general article of impeachment a move then followed by a Senate trial with witnesses.

    During the next presidential impeachment proceedings, against Richard M. Nixon, he said, the House Judiciary Committee's three articles relied largely on evidence gathered by other congressional committees and the Watergate special prosecutor; it called nine witnesses, including five at the White House's request.

    "In recent days, some have publicly asserted that the House was hypocritical . . . because we didn't call some of the fact witnesses," Bryant said. "But any allegation of hypocrisy certainly appears to miss the point that the writers of our Constitution never contemplated two separate trials for an impeachment proceeding."

    But if anything that happened yesterday serves to convince senators to take the plunge and hear from witnesses, it is likely to be not the historical record but the masterful presentation by Hutchinson, weaving together the strands of the complicated obstruction-of-justice case against Clinton in a more compelling manner than any previous presentation.

    In his version of the case before the House Judiciary Committee, majority counsel David P. Schippers at times detracted from the strength of his argument with sarcastic asides about Clinton and his motives.

    Hutchinson, looking every bit the federal prosecutor that he was before being elected two years ago, hewed more closely to a simple presentation of the facts, albeit one that drew every negative inference against Clinton. He also anticipated the arguments the president's lawyers can be expected to make against the obstruction case and tried to strike preemptively against them.

    For example, the White House has repeatedly contended that Clinton could not have been trying to tamper with the testimony of his secretary, Betty Currie, when he presented a set of leading questions to her about Lewinsky after his deposition in the Paula Jones sexual harassment lawsuit because Currie had not been called as a witness in the case and the time for discovery was running out.

    Hutchinson painstakingly detailed the six times during the deposition that Clinton himself brought up Currie's name. "There is no question but that Ms. Currie was a prospective witness and the president clearly wanted her to be deposed as a witness as his 'ask Betty' . . . testimony demonstrates," Hutchinson said.

    He confronted head-on the circumstantial nature of the obstruction case, reading from the standard instruction given to juries that circumstantial and direct evidence can be given equal weight.

    And he summoned for the senators the benefits they would gain by seeing witnesses like Currie for themselves.

    "She is the classical reluctant witness," he said. "Where are her loyalties as you would examine her testimony? Where is she uncomfortable in her testimony? When she's asked a question, how does she shift in the chair? Those are the kinds of ways you have to evaluate the truthfulness of the testimony, where their loyalties lie and where their motives are."

    Rogan made a similar pitch, although part of his analysis of the differences in the accounts of Clinton and Lewinsky about exactly which body parts he touched might give the senators as much pause as incentive to summon Lewinsky, whose graphic accounts are contained in the Starr report.

    "So who is telling the truth?" Rogan asked. "The only way to really know is to bring forth the witnesses, put them under oath, and give each juror, each member of this body, the opportunity to make that determination of credibility, because the record shows that Monica Lewinsky delivered consistent and detailed testimony under oath regarding many specific encounters with the president that clearly fell within the definition of 'sexual relations' from the Jones deposition."

    © Copyright 1999 The Washington Post Company

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