By Ruth Marcus and Roberto Suro
Independent counsel Kenneth W. Starr's report confronts members of Congress with the daunting task of analyzing difficult questions of criminal law, vaguely defined constitutional standards for impeachment and the largely uncharted interplay between the two realms.
Were President Clinton an ordinary target in a run-of-the-mill criminal investigation, it is highly unlikely, many legal experts agree, that the evidence upon which Starr bases his impeachment argument that Clinton lied under oath, obstructed justice, and tampered with a witness ever would have resulted in criminal charges.
But Starr's report depicts the president's alleged offenses as conduct that not only is unlawful, but goes to the heart of his constitutional duties.
Invoking "the enormous trust and responsibility attendant to his high office," the report argues that Clinton, perhaps more than any other citizen, has "a manifest duty to ensure that his conduct at all times complies with the law of the land."
As a result, the coming congressional debate much as the initial round of arguments between Starr and Clinton's lawyers yesterday is likely to center both on the specific question of whether any of the president's actions constituted criminal violations and the broader constitutional issue of whether his misdeeds were so egregious as to warrant his removal from office, regardless of what verdict they might produce in a courtroom.
Starr's 11 grounds for possible impeachment of the president break down into three categories:
Perjury that Clinton lied under oath about his relationship with Monica S. Lewinsky and related matters, both during his deposition in the Paula Jones sexual harassment lawsuit, and, more ominously, in his grand jury testimony.
Obstruction of justice in trying to cover up the relationship, encouraging Lewinsky to lie about it, helping her get a job, trying to influence the testimony of his secretary, Betty Currie, and thwarting the subsequent grand jury investigation of his actions.
Official misconduct including lying to the public and Congress about his relationship with Lewinsky, balking at testifying before the grand jury, and invoking executive privilege that "constitute[s] an abuse of authority inconsistent with the president's constitutional duty to faithfully execute the laws."
Legal experts said last night that Starr's strongest evidence and clearest arguments appear to lie in the allegations of perjury, and particularly the charge that Clinton lied about the nature of his sexual encounters with Lewinsky. They said that the independent counsel's evidence on the questions of obstruction and witness-tampering are, as the report acknowledges, largely circumstantial; the report offers no "smoking gun" of a Watergate-style conspiracy to thwart investigators.
The weakest part of Starr's case, they said, is the attempt to transform some of the president's actions, particularly his court battles on executive privilege, into violations of his constitutional duties.
"There is substantial and credible information that the President's lies about his relationship with Ms. Lewinsky were abundant and calculating," the Starr report alleges, and that claim of perjury forms the core of the case against Clinton. Four of the 11 grounds for impeachment cited by Starr are allegations of perjury in Clinton's deposition in the Jones case and a fifth accuses Clinton of perjury in his grand jury testimony last month.
Perjury is generally a difficult crime to prove, because prosecutors must show that a defendant not only made false statements but knowingly lied. Clinton's lawyers yesterday set the stage for arguing that the president's statements were merely "narrow answers to ambiguous questions."
But as the Starr report set out, some of the alleged false statements for example, whether Clinton ever remembered being alone with Lewinsky and his recollections of the gifts they exchanged did not involve possible misinterpretations of badly phrased questions.
In addition, the issue of whether the president lied to the grand jury a potentially far more serious matter for congressional inquiry appears likely to come down to a contest between the sworn statements of Lewinsky and the president.
Clinton said in his grand jury testimony that he did not engage in any conduct with Lewinsky covered by the definition of "sexual relations" used by Jones's lawyers; Lewinsky related 10 incidents in which she described conduct by the president that is clearly within the Jones definition. The report says her testimony is corroborated by Lewinsky's contemporaneous descriptions of the encounters to 11 friends and family members. "Given that his credibility has been shattered, Monica Lewinsky would seem more credible than Bill Clinton on this point, unless the defense can present evidence that Lewinsky had reason to exaggerate their sexual contact or had a history of such exaggerations," said UCLA law professor Peter Arenella.
Most members of Congress have said that the biggest areas of jeopardy for the president concern possible obstruction of justice in allegedly coaching Lewinsky or Currie to lie, in ensuring that Lewinsky did not turn over to the Jones lawyers the gifts from the president that they had subpoenaed, or in helping secure a job for Lewinsky during the period when the Jones lawyers were seeking her testimony.
On that score, the Starr report yesterday provided extensive new evidence about Clinton's intense personal involvement in helping Lewinsky obtain a job. For example, the report says that immediately after Clinton learned that Lewinsky was on the witness list for the Jones case, his efforts to help her find a job intensified.
The Starr report concludes that even though there is not explicit evidence of Clinton's unlawful intent in helping Lewinsky find a job, "one can draw inferences about the party's intent from the circumstantial evidence." Similarly, the report relies on inferences to conclude that Clinton played a role in concealing his gifts to Lewinsky from the Jones lawyers.
Acknowledging Lewinsky and Currie contradict each other on key facts about how the gifts ended up with Currie, the report argues simply that Lewinsky's testimony "makes more sense" than Currie's and that "even if Lewinsky is mistaken . . . the evidence still leads clearly to the conclusion that the President orchestrated this transfer."
On the charge that Clinton encouraged Lewinsky to lie about their relationship, the report acknowledges that Lewinsky does not say that Clinton directly instructed her to do so. Rather, in a 2 a.m. phone call informing Lewinsky that her name was on the Jones witness list, the president suggested that she might sign an affidavit to avoid being deposed. "I knew what that meant," Lewinsky testified.
The report also details testimony from Currie about Clinton's conversations with her just after his deposition in the Jones case, episodes that prosecutors say show the president was trying to coach Currie to cover up his relationship with Lewinsky.
Although Clinton in his grand jury testimony said he was merely "trying to determine whether my recollection was right" and "get the facts down," Starr contends that Clinton's statements, and his insistent tone, as related by Currie, show that he feared Currie might become a witness in the case and "sought improperly to influence" her testimony.
The Currie allegations are "one of the more damning things," in the Starr report, said William & Mary law school professor Michael Gerhardt. But, he said, "It's going to be practically impossible to try to prove he had specific intent to tamper with a witness. But it's going to again reflect on his basic truthfulness and credibility."
Some legal experts said they thought Starr's report went further afield when it accused Clinton of obstructing justice by lying to potential grand jury witnesses, knowing that they would then repeat the falsehoods to the grand jury.
"Falsely denying guilt in a conversation with a friend or a colleague who then testifies is not usually treated as obstruction or witness tampering," said Gerald Lynch, a law professor at Columbia University. "Such charges typically involve a very explicit and clearly intentional effort to introduce false information into the record of a case."
Starr's final set of allegations, involving Clinton's alleged abuse of office, sought to bring Clinton's conduct out of the arena of criminal law and into that constitutional framework, but also seemed the most subject to accusations of overreaching, some experts said. "I just find that to be incredibly thin," said Gerhardt, author of a book on impeachment.
Still, scholars said the ultimate judgment for Congress will not be so much whether Clinton is guilty of specific crimes as whether his conduct calls into question his fitness to serve as chief executive.
"It is not a technical statute book question but whether this is worthy of undoing a national election," said Yale Law School professor Akhil Reed Amar. "That's what the debate should be about. Looking the American people in the eye and lying to them, looking your Cabinet in the eye and lying to them, is potentially far more serious high political misconduct, than technical perjury in a civil deposition, even thought that one might be more technically criminal."
Said Harvard Law School professor Laurence H. Tribe, "The lines that we draw in the criminal law are not always particularly relevant to this question of whether there was a grave abuse of presidential power . ... I do think this is in a gray area where it's entirely appropriate and unavoidable to be thinking about whether impeachment is right."
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