Lewinsky Lawyer Says All Is 'on the Table'
Washington Post Staff Writer
Saturday, January 24, 1998; Page A16
The legal situation surrounding President Clinton has entered a new and delicate stage as lawyers for former White House intern Monica S. Lewinsky and independent counsel Kenneth W. Starr negotiate her future -- a legal minuet with potentially immense implications for the president.
Lewinsky's lawyer, William Ginsburg, said yesterday that his client is a "target" of Starr's investigation, a legal term of art that means she is in danger of being indicted. "Everything is open, available and on the table," Ginsburg told CNN -- literally broadcasting his desire to obtain immunity from prosecution for his 24-year-old client.
After initially offering Lewinsky full immunity, Starr's office now appears to be playing tough. The independent counsel is threatening to prosecute Lewinsky rather than simply granting her immunity and obtaining her testimony about whether she had an affair with President Clinton and what, if anything, Clinton told her about how to respond to questions in the Paula Jones sexual harassment lawsuit.
Sources said that Starr's lawyers are very reluctant to enter into any immunity arrangement with Lewinsky without knowing in advance what testimony she has to offer, and Ginsburg has so far refused to provide a "proffer" of what statement Lewinsky would make.
Starr's position stems in part from his unhappy experience with former associate attorney general Webster L. Hubbell, who pleaded guilty to embezzlement charges, promised to cooperate, and then failed to deliver the anticipated goods on his friend President Clinton. Starr doesn't want to repeat that scenario with Lewinsky, granting her immunity from prosecution only to find out that she has nothing to provide.
Without testimony from Lewinsky, legal experts said, or if she sticks to her sworn account that she had no sexual relationship with Clinton, Starr's possible case against the president would be weak at best.
"If she draws that line and says, 'Guess what, I was lying to Linda Tripp [the former White House colleague who taped Lewinsky describing her relationship with Clinton], I made it up the whole time,' it's over," said one Washington criminal lawyer.
But Starr's bargaining chips with Lewinsky include some key evidence -- and the threat of prosecution on charges that carry the possibility of significant jail time. He has an affidavit that Lewinsky provided on Jan. 7 in the Jones lawsuit asserting that she did not have a sexual relationship with Clinton and hours of taped conversations, including some monitored by the FBI, in which sources said Lewinsky provides a detailed account of a sexual relationship with the president. Starr could seek to use the tapes and other evidence against Lewinsky to show that she perjured herself in the affidavit.
Starr also has a set of "talking points" that Lewinsky provided to her former Pentagon colleague, Linda R. Tripp, in which Lewinsky advised Tripp on how she should respond to questions about Clinton's alleged involvement with another former White House aide, Kathleen Willey.
Counseling Tripp to lie in the Jones lawsuit could constitute obstruction of justice, an even more serious charge for Lewinsky. "They've got a big club they're wielding right now," said George Washington University law professor Stephen Saltzburg.
But with the country riveted by reports that the president himself may have committed perjury and obstructed justice, Starr also faces significant pressure to get to the bottom of the allegations, and quickly. Indicting Lewinsky and bringing her to trial could take months or longer. And prosecuting Lewinsky, a "devastated, concerned, upset and fearful" young woman, as her lawyer portrayed her yesterday, could make her look more like a victim than a criminal.
"I think the reason they're starting out this way is they don't want Susan McDougal, they don't want somebody to clam up," Saltzburg said, referring to the former Clinton business partner who has spent more than a year in prison on contempt charges rather than testify against the president, "but I can't believe in the end they're going to want to put this woman in jail."
One Washington criminal defense lawyer advised Lewinsky to "hold out . . . and force Starr to the end of his dilemma," choosing between indicting a sympathetic defendant or giving her immunity. "This thing is of such sensational dimension that he can't just let himself be stymied," the lawyer said. "He's got to break through this fast."
"We've got to wait and see who's going to blink," said another Washington lawyer. "I assume Starr's going to blink because he's going to have to. The ball can't move until he gives her immunity and it's in his interest to move the ball, not in anybody else's. It strikes me he has to do that and he has to do it soon."
Even if the standoff over a proffer were to be resolved, Starr and Ginsburg could reach another impasse over how far the immunity to be granted to Lewinsky would extend. Ginsburg has already indicated that he is looking for a broad grant of immunity from prosecution, known as "transactional immunity," that would shield his client from being prosecuted for any offense related to the allegations.
But prosecutors are normally reluctant to provide such broad protection and typically offer more limited "use immunity," which would protect Lewinsky from having her testimony, or leads derived from it, used against her but would not prohibit prosecutors from making a separate case against her.
For example, in this situation, if Lewinsky were to change her story and testify that she had an affair with the president, use immunity would protect her from being charged with perjury for her conflicting statement in the Jones affidavit. But prosecutors would not be barred from bringing a case, unrelated to her testimony, growing out of the Tripp talking points.
"If they give her just ordinary statutory [use] immunity they could convict her of witness tampering or obstruction based on the testimony of Linda Tripp . . . so for her the idea that they won't use her words against her is not really much satisfaction given what they already have on her," Saltzburg said.
And even if the thorny immunity questions are resolved, obtaining testimony from Lewinsky damaging to President Clinton would be only the first step in building a case against Clinton, an effort that legal experts said could prove daunting if not impossible.
"I think their opportunity was really to turn her and get her wired" to tape attorney Vernon E. Jordan or perhaps even Clinton, said criminal defense lawyer Raymond Banoun. "That having failed, I think it's going to be difficult unless they find a lot more corroboration or get somebody in the White House to break."
Others were more confident Starr could build a case against Clinton if the facts support it. "I think corroboration's out there to be had, if it's true," one lawyer said, pointing to things like White House entry logs, reported tapes of messages Clinton left on Lewinsky's answering machine, packages she allegedly delivered to the president, and gifts he reportedly admitted giving to her.
If Lewinsky were to testify that she had a sexual relationship with Clinton, something he is reported to have denied during his deposition Saturday in the Jones lawsuit, that could expose Clinton to charges of perjury.
© Copyright 1998 The Washington Post Company