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President Clinton poses in the Map Room of the White House before delivering his televised address. (AFP)

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Legal Guide: Untangling the Issues


The Legal Gamble:
To Say Just Enough

By Susan Schmidt and Ruth Marcus
Washington Post Staff Writers
Tuesday, August 18, 1998; Page A1

President Clinton's legal strategy of denying any perjury and offering minimum details about his sexual relationship with Monica S. Lewinsky appears to be a gamble that independent counsel Kenneth W. Starr will be left without enough evidence to bring a criminal case or convince Congress to launch impeachment proceedings.

The centerpiece of Clinton's defense, as he told the country last night, is that, while admittedly misleading, his denial under oath last January that he had a sexual relationship with Lewinsky was "legally accurate" and therefore did not constitute perjury. He asserted he did not encourage Lewinsky to lie or obstruct justice in any way.

In acknowledging an improper relationship with Lewinsky but denying that he lied under oath in his deposition in the Paula Jones sexual harassment case, Clinton appears to be adopting a narrowly legalistic view of the definition of "sexual relationship" used by the Jones lawyers and arguing that, whatever the nature of the contact between him and the former intern, it did not fit within that definition.

Answers that are technically true cannot constitute perjury even if they are misleading. But Clinton's apparent argument -- even if it is accepted -- does not address a number of other statements he made during the deposition, such as his assertion that he did not recall being alone with Lewinsky and did not discuss with her the subpoena from Jones's lawyers.

Nor does it take into account other evidence that Starr has amassed -- for example, Lewinsky's reported testimony that Clinton discussed with her "cover stories" to hide their relationship from the Jones lawyers or how to avoid turning over to them gifts that had been subpoenaed.

More immediately, Clinton's angry public denunciation of the independent counsel and his refusal to answer questions that prosecutors put to him yesterday behind closed doors is a high-stakes strategy that raises the possibility of additional legal confrontations between the president and the independent counsel.

Starr withdrew his initial subpoena to the president in return for Clinton's promise to answer prosecutors' questions voluntarily. Yesterday, Clinton balked at answering what he considered unduly intrusive questions and cut off prosecutors' questioning at the agreed-upon hour, even though they had not yet finished.

Given that stance, Starr could reissue the subpoena -- and seek to have him held in contempt if he refuses to comply, a possibility that prosecutors raised during their questioning of Clinton yesterday. For their part, the president's lawyers could take the approach they backed off from during the first round and challenge Starr's constitutional authority to summon a sitting president.

Clinton's refusal to answer prosecutors' questions on the grounds that they were too intimate is highly unusual. "Unless a witness has a legitimate privilege to refuse to answer a question or series of questions, they have to answer them," said former prosecutor Lawrence Barcella. "A witness can't just refuse to answer a question because he or she doesn't feel like it,"

But Clinton's lawyer, David E. Kendall, said Clinton was justified in refusing to answer because the questions were improperly and unnecessarily graphic. "As to a very few highly intrusive questions, with respect to the specifics of this [sexual] contact, in order to preserve personal privacy and institutional dignity, he gave candid, but not detailed, answers," Kendall told the Associated Press. As he weighs the evidence against Clinton, Starr could still decide to seek an indictment of the president, although that is the least likely of the possible scenarios and one that is fraught with constitutional questions.

The more probable outcome is a scathing report to Congress that will outline evidence of possible grounds for impeachment and that, legal sources said, could cite Clinton's refusal to answer all the questions posed to him as evidence of efforts to impede the grand jury investigation.

Starr's office last night was silent on its plans, but some criminal defense lawyers said they thought Clinton's approach risked an angry retort from the independent counsel. "It makes Starr put up," one lawyer said. "If I were Starr I would be livid and prone to want to issue my report tomorrow."

Starr's face-off with Clinton yesterday was the climax of seven difficult and bitter months of investigation and the last major step before Starr sends the matter to Congress for possible impeachment proceedings.

Now that he has secured the president's account of his relationship with Lewinsky, Starr may recall a few final witnesses before the grand jury to test Clinton's story, the most likely being Lewinsky and Clinton's personal secretary Betty Currie. Starr may also have more Secret Service officers
Clinton
Read what Clinton has said about his relationship with Lewinsky, and see the video of his Jan. 26 statement.
he wants to question, and he has not yet obtained the full testimony of deputy White House counsel Bruce R. Lindsey, one of the president's closest friends.

But yesterday's session with Clinton -- however acrimonious -- marks the beginning of the end for Starr's role in the scandal, a turning point that within weeks will likely move the investigation of Clinton to Congress, which has shown little enthusiasm for taking it on.

Starr is virtually certain to produce a report detailing possibly impeachable acts on the part of Clinton, sources close to the probe said. "If he provides testimony that they think is both truthful and indicates that prior testimony was truthful and takes care of obstruction of justice, then they won't send a report -- but I can't imagine how that scenario would be true," said a lawyer familiar with Starr's operation.

What is important, said a Democratic congressional source yesterday, is "whether Starr has anything other than the affair. If there is nothing else the House will find a means to truncate this, but if there is something else, the House will have to do something more."

Over the weekend anonymous Clinton allies tried to hold out an olive branch in hopes Starr would not embarrass Clinton at yesterday's session, one describing the special counsel as a "righteous man" -- not a partisan. But soon after the session ended, Kendall signaled the day had been confrontational.

"We're hopeful that the president's testimony will finally bring closure to the independent counsel's more than four-year and over $40 million investigation, which has culminated in an investigation of the president's private life," said Kendall, using the language Clinton supporters have time and again used against Starr.

Clinton's lawyers were opposed to the president testifying, sources said, fearing he would place himself in legal jeopardy. Kendall urged Clinton to challenge Starr's authority to compel his testimony, sources said, and Robert S. Bennett, the lawyer who represents Clinton in the Paula Jones matter, urged that he either refuse to testify or else respond fully to all Starr's questions.

For all its notoriety, in the end the investigation of the president has followed the course of a more normal criminal case, legal experts said. "To some degree this thing has proceeded -- albeit on a rather grand scale -- in the way that you'd expect," said Columbia University law professor Gerard Lynch. "Clinton has to be the last big witness. You build all of your case and then you confront the person with it."

© Copyright 1998 The Washington Post Company

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