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Jones Case Ruling Complicates Independent Counsel's Task

Whitewater independent counsel Kenneth W. Starr arrives for work Friday. (AP)
By Roberto Suro and Joan Biskupic
Washington Post Staff Writers
Saturday, January 31, 1998; Page A14

Independent counsel Kenneth W. Starr's chances of building a case that President Clinton lied about his relationship with Monica Lewinsky have been complicated -- but not undermined -- by Thursday's ruling by a federal judge in Little Rock.

That was the assessment of legal experts interviewed yesterday about the impact of U.S. District Judge Susan Webber Wright's decision to exclude all evidence relating to Lewinsky from the Paula Jones sexual harassment lawsuit against Clinton.

"It gives Starr's office a new headache and it is a very big headache," said University of Chicago law professor Stephen Schulhofer.

The problem for Starr, in the view of Schulhofer and other experts, lies in the fact that while Clinton has publicly denied having a relationship with Lewinsky on a number of occasions, he has done it only once under oath -- and that was in the deposition he gave in the Jones civil case on Jan. 17. Likewise, the only time Lewinsky has said under oath that she did not have a relationship with Clinton was in an affidavit for the Jones case.

The affidavit and deposition, therefore, were thought to be key elements in any attempt Starr might make in accusing Clinton of perjury or using the threat of perjury to obtain Lewinsky's cooperation.

But Wright ruled on Thursday that information relating to Lewinsky was not "essential" to the Jones case. She said any value that evidence from the Lewinsky matter might have to Paula Jones's case was overridden by the chance that it might interfere with Starr's criminal investigation. Wright added that she had also considered "the substantial interests of the presidency" and the need for a timely resolution of the case.

So, by effectively taking the Lewinsky matter out of the Jones case, Wright has left Starr with the task of investigating whether perjury occurred in testimony that will not be entered in the Jones trial record.

Under similar circumstances, defendants have tied up perjury prosecutions with legal challenges based on the grounds that the alleged lies were not "material" -- that is, they had no relevance to the outcome of the proceedings, and on a few occasions such challenges have proved successful. Clinton's lawyers could do the same thing.

"Resourceful lawyers will use such a ruling any way they can, but whether a court will think much of such arguments is another matter," said Joseph E. diGenova, who served as an independent counsel in the early 1990s.

In Schulhofer's opinion, "it makes it far more difficult to show that any crime was committed" by Clinton or Lewinsky because "it makes it more difficult to show that the alleged false statements were material to the Paula Jones case, where they were made."

The jurisdiction granted to Starr two weeks ago by the special judicial panel that oversees the independent counsel process specifically limits Starr to determining whether "Lewinsky or others" suborned perjury, obstructed justice or committed other crimes in relation to the Jones case. He gained the authority to expand his investigation of Clinton based on information that Clinton attempted to persuade Lewinsky to lie about her relationship with him in a deposition she was scheduled to give in the Jones case. Her friend Linda R. Tripp has alleged that Lewinsky also urged her to lie in any deposition she gave in the Jones case.

The most immediate impact of Wright's ruling will be felt in Starr's negotiations with Lewinsky's lawyers over a deal in which she would agree to tell all in exchange for a grant of immunity. As her own lawyer, William H. Ginsburg, has stated, Starr's leverage on Lewinsky is based on his ability to credibly threaten her with prosecution for perjury and other crimes. To the extent that Wright's ruling dims that threat, it weakens Starr's hand.

But in the long run, the impact of Wright's ruling may be more political than legal.

"Starr started out pursuing an allegation of perjury in a civil case, which most prosecutors would never have bothered to pursue if an ordinary citizen, not the president, were involved," said Cass R. Sunstein, a professor of constitutional law at the University of Chicago. "Now you have the prospect of threatening criminal prosecution for perjury in testimony that was not even heard in a civil case, and that will expose Starr to charges that this is not legitimate prosecutorial behavior, that he has lost perspective and is going to any length necessary to pursue the president."

Already the target of Hillary Rodham Clinton's charges this week that he is a politically-motivated and overzealous prosecutor, Starr would be open to further attack if he appeared to be taking any extraordinary efforts to bring a case against the president.

Wright, the judge presiding over the Jones sexual harassment case, became involved in trying to disentangle the Lewinsky and Jones cases in part because of an unusual encounter in the federal courthouse in Washington this week. As Leon E. Panetta, the former White House chief of staff, sat outside the grand jury room waiting to be called to give testimony in Starr's investigation on the Lewinsky matter, a process-server handed him a subpoena from Jones's lawyers asking him to testify in their case as well.

Starr then filed a motion with Wright asking Wright to order Jones's lawyers to stay away from his witnesses on the grounds that his case had to take precedence.

Wright essentially agreed that there should be no interference in the criminal case, but also said that since the president is involved, the civil case should go forward expeditiously. She referred to the Supreme Court's ruling last May allowing Jones's case to proceed, which said, "the high respect that is owed to the Office of the Chief Executive . . . is a matter that should inform the conduct of the entire proceeding, including the timing and scope of discovery."

Wright's determination that Jones cannot use the Lewinsky information could affect Jones's ability to make a case that Clinton engaged in a pattern of misconduct. But Wright has not stopped Jones from introducing at trial any other evidence of Clinton's sexual relations with women other than Lewinsky.

Wright specifically did not assess whether the Lewinsky information would be pertinent to the Jones case, saying: "The court acknowledges that evidence concerning Monica Lewinsky might be relevant to the issues in this case." She also said she wasn't precluding the admission of any other evidence of alleged misconduct by Clinton.

Nonetheless, by concluding that "evidence concerning Monica Lewinsky should be excluded from the trial of this matter," Wright did not make things easy for Starr, who has also had trouble reaching a plea agreement with Lewinsky.

If he seeks to use either the Clinton deposition or the Lewinsky affidavit for a perjury charge, he would have to prove that the statement was "material." To be "material," a statement "must have a natural tendency to influence, or be capable of influencing, the decision" of the person to whom it was addressed. Lower courts are split over whether a false statement can still be considered "material" if it did not substantially affect the proceeding in which it was made.

"The threshold question is whether the statement can even be perjury once there has been determination that it is of such limited relevancy in even a civil case," said Sam Buffone, a D.C. criminal lawyer.

But other lawyers, including some close to the Starr investigation, say it does not matter whether the statement ever ended up in trial; the point is whether it was material or influential at the time it was spoken.

Another element that could make it difficult for Starr is that the question of materiality is to be decided by a jury, rather than a judge, according a recent Supreme Court ruling. That means that if a case ever came to trial, it would be average people who would decide whether any lie relating to sexual relations -- made in a particular case but not even used in that case -- is relevant.

Starr's office said that it does not believe Wright's ruling will have any negative effect on the investigation. While lawyers in his office think they could still prove the Lewinsky and Clinton statements were relevant and material, they also are exploring the possibility of making a case on obstruction of justice, which does not require proof of materiality. Further, if Starr does end up finding evidence of wrongdoing by Clinton and turns that over to the House of Representatives for consideration of impeachment, the usual federal rules of evidence would not apply.

© Copyright 1998 The Washington Post Company

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