Managers' Strongest Case Is Weak Link
Washington Post Staff Writer
Tuesday, February 9, 1999; Page A4
In the five months since independent counsel Kenneth W. Starr's report triggered the impeachment proceedings against President Clinton, the facts have been endlessly rehashed, the gaps in the evidence stitched together and picked apart, the Constitution's framers invoked to endorse both prosecution and defense.
Yet the essential riddle presented by the charges against Clinton remains: The House managers offer the Senate a perjury case that is at its most convincing when it is also most trivial, and an obstruction case that portrays the president in a disturbing light but is ultimately founded on dueling accounts and disputed inferences.
So it went yesterday in the closing hours of the case, as both sides presented their final arguments in one of the strangest legal proceedings in the annals of American law, a trial by video snippets that was all argument and no new evidence.
Perjury on Picayune Points
With the trial straggling to a seemingly foregone conclusion of acquittal, the managers have as their strongest argument that Clinton committed perjury, but it is an accusation based on the most picayune topics. However serious it may be to contemplate that a president lied under oath to a federal grand jury, removing him from office seems to many senators a grossly disproportionate response to lies about precisely where Clinton touched Monica S. Lewinsky or what month their dalliance began.
In other instances, the evidence on the perjury charge hardly seems to offer conclusive proof – for example, whether Clinton was paying attention when his lawyer recited false information at the Paula Jones deposition and whether he came up with his strained understanding of the definition of "sexual relations" on the spot at the deposition or concocted it after the fact.
All of that may have contributed to the House managers' decision to downplay the perjury charges during the Senate trial and concentrate on the more alarming but still flawed case that Clinton obstructed justice in trying to cover up his relationship with Lewinsky.
The obstruction case presents a scenario that is deeply troubling but at the same time contested and highly circumstantial. For example, the allegation that Clinton obstructed justice by arranging for the return of gifts that he gave to Lewinsky and that were subpoenaed in the Jones lawsuit requires senators to decide between Lewinsky and presidential secretary Betty Currie about who initiated the gift retrieval and to infer, even if they credit Lewinsky's detailed story over Currie's hazy recollection, that Clinton orchestrated it.
Consequently, the obstruction charge presents a somewhat shaky platform on which to erect the case that senators should oust a popularly elected – and still hugely popular – president.
Two Bad Hands
In making their cases, neither prosecution nor defense was dealt a particularly attractive hand.
House prosecutors were plagued by frustrating gaps in the evidence and damaged by the failures and omissions of the lawyers who had gone before them. In particular, they were hobbled by the botched deposition of Clinton in the Jones case, where the lawyers failed to nail down presidential evasions with logical follow-up questions and, most significantly, refused to ask Clinton directly exactly what he did with Lewinsky. Instead, they used a convoluted definition of sex that allowed the president to argue later that he was telling the truth under his contorted understanding of the term.
The managers sustained another injury to their case when the House rejected the article of impeachment accusing Clinton of lying at the deposition. And although the managers sought to resurrect those charges by saying that Clinton lied before the grand jury when he said he told the truth at the Jones deposition, they had a scanty transcript on which to hang that perjury charge.
For example, Starr's prosecutors did not directly ask Clinton during their grand jury session whether he told the truth at the deposition when he told the Jones lawyers he was never alone with Lewinsky, an omission that made the managers' task more difficult and was a matter of no small relief to Clinton's lawyers.
The managers also were undercut by the immutable fact that the key witnesses in their case against the president – Currie, Vernon E. Jordan Jr. and to some extent Lewinsky herself – were committed to seeing him remain in office and that their testimony was, as Rep. Edward G. Bryant (R-Tenn.) said of Lewinsky last week, "very guarded in each response and almost protective" of the president.
Finally, the prosecutors were hamstrung by the House's failure to conduct at the impeachment stage – and the Senate's consequent unwillingness to provide at trial – the kind of full factual development that might have filled in some of the perplexing holes and convinced wavering jurors.
The artificial limit of three witnesses, and the strategic choice of the House managers to use one of their slots to summon White House aide Sidney Blumenthal, a relatively minor player in the constitutional drama, meant that none of those voting on Clinton's fate ever heard from one of the critical players, Currie.
Difficulties for Clinton Team
For its part, Clinton's team had to accommodate the unpleasant fact that their client was, at best, an adulterer with a shaky commitment to the truth, a penchant for seizing on the smallest of possible openings to avoid telling it, and a track record of bad judgment in his effort to keep the Lewinsky affair from becoming public once the Jones lawyers were alerted to it.
The behavior that first Starr and then the House viewed as obstruction of justice – that Clinton had Jordan find Lewinsky a job at the very time Clinton was obviously concerned about ensuring that Lewinsky avoid testifying in the Jones lawsuit – certainly suggests impropriety, whether or not it rises to the level of a criminal violation or an impeachable offense.
Similarly, his summoning of Currie to relate a false version of the facts at a time when he knew she could end up being called to testify represents every defense lawyer's worst nightmare: a client whose clumsy attempts at what prosecutors will inevitably view as a coverup may exceed the gravity of the underlying offense.
Rep. Henry J. Hyde (R-Ill.) yesterday invoked an Italian saying to praise the president's lawyers and damn their client: "You may dress the shepherd in silk," Hyde said. "He will still smell of the goat."
As they retraced the charges against Clinton for what may be the final time yesterday in what Hyde called "this melancholy procedure," the two sides were no closer on the facts or the law than they were when the matter started.
The managers looked at the evidence as a whole, arguing that the thread tying all the events together is an effort by the president to make sure that Jones was not able to obtain the evidence to which she was entitled in her sexual harassment suit. "What stands today, as it has throughout these proceedings, are facts – a false affidavit that benefits the president; the coaching of witnesses by the president; the secreting of subpoenaed evidence that would have harmed the president; lies under oath by the president," said Rep. Robert L. Barr Jr. (R-Ga.).
But White House counsel Charles F.‚C. Ruff methodically deconstructed first the perjury charges and then what Rep. Asa Hutchinson (R-Ark.) had termed the seven "pillars of obstruction."
"Ladies and gentlemen of the Senate, I don't know whether there's a market for used pillars, but they're all lying in the dust," Ruff said.
The two sides were similarly divided on what it takes to remove a president from office. The proper question, Ruff told the senators, is this: "Would it put at risk the liberties of the people to retain the president in office? Putting aside partisan animus, if you can honestly say that it would not, that those liberties are safe in his hands, then you must vote to acquit."
Hyde framed the choice facing the Senate in opposite but equally dire terms. Failing to convict Clinton, he said, would be "saying a perjurer and an obstructer of justice can be president. ... You raise the most serious question of whether the president is fact subject to the law or whether we are beginning a restoration of the divine right of kings."
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