By Ruth Marcus
A number of outside legal experts agreed with the Clinton team that the case mounted against the president by independent counsel Kenneth W. Starr would face major weaknesses as a criminal prosecution and at the very least would likely be substantially pared back.
"This is still a case that, were it a regular case, would never ever be brought," Bruce Yannett, a New York criminal defense lawyer, said before the White House issued its rebuttal. "There was a lot less than I expected" in the Starr report.
But Clinton faces a twofold problem.
First, as a purely legal matter, Starr's strongest allegations against the president -- and the weakest points in the Clinton team's rebuttals -- are those that are potentially the most politically dangerous for Clinton: that he lied not merely in his civil deposition in the Paula Jones case but, after seven months of calculating how to handle his relationship with Monica S. Lewinsky, also in his grand jury testimony.
In addition, the Clinton team parsed through the charges against Clinton as if it were preparing a motion asking a judge to dismiss an indictment as legally insufficient. But there is no requirement that Congress, in considering whether Clinton's actions justify his removal from office, find that he is guilty of any statutory crime and certainly not that the specific elements of particular offenses on the federal statute books have been met.
Nearly a quarter-century ago, Richard M. Nixon's lawyer, James St. Clair, argued to the House Judiciary Committee that the president could not be impeached for actions that did not constitute crimes. But the committee staff, including Hillary Rodham Clinton, concluded that it would undermine the role and importance of impeachment proceedings to confine impeachable conduct to offenses that warrant criminal charges.
"To confine impeachable conduct to indictable offenses may well be to set a standard so restrictive as to not reach conduct that might adversely affect the system of government," the staff wrote in a February 1974 report. "State and federal criminal laws are not written in order to preserve the nation against serious abuse of the presidential office. But this is the purpose of the constitutional provision for the impeachment of a president."
Unlike a criminal defendant facing similar accusations, Clinton's fate is not likely to turn on some of the narrow and technical legal questions raised by the president's rebuttal yesterday -- such as whether his misstatements about his relationship with Lewinsky were "material" to the Paula Jones sexual harassment lawsuit or whether his efforts to help Lewinsky find a job violated every element of 18 United States Code section 1503, the federal obstruction of justice statute.
Rather, lawmakers' assessment of Clinton's behavior is likely to hinge on the seriousness with which they view his overall course of conduct, the extent to which it relates to his constitutional functions and whether it has affected his ability to perform them.
Nonetheless, as Congress launches its consideration of Starr's report, the question of whether the president's conduct constitutes criminal violations, as the report asserts, will inevitably affect lawmakers' analysis of whether he committed "high crimes and misdemeanors" warranting impeachment.
Perhaps the most perilous of the 11 counts against him concerns his grand jury testimony. Last month, Clinton, boxed into a corner by the political unpalatability of asserting his constitutional right against self-incrimination, did what few other criminal defendants in America would willingly do: He testified before the grand jury investigating his relationship with Lewinsky.
At the time, members of Congress and other observers said -- whether or not Clinton would face impeachment for lying in his Jones deposition when suddenly confronted with questions about Lewinsky -- he would be in much greater trouble if, seven months and much contemplation later, he were to lie in the more solemn setting of a federal grand jury.
Now, Starr has accused the president of doing exactly that -- in claiming that he believed oral sex performed on him did not fall within the definition of sexual relationship used in the Jones civil suit; in denying that he engaged in any activity covered by that definition, such as touching Lewinsky's breasts or genitals; and in claiming that their sexual relationship did not begin until early 1996, rather than starting in late 1995 when Lewinsky was still an intern.
Clinton's rebuttal yesterday dealt with perhaps the most convincing of those allegations -- that the president lied when he denied touching Lewinsky in an intimate manner -- in a single paragraph. As detailed in Starr's report, Lewinsky not only testified about 10 such encounters with the president, but her account was supported by her descriptions to numerous friends and family members told at the time the affair was going on.
Clinton's response yesterday did not accuse Lewinsky of fabricating but simply suggested that a perjury prosecution cannot be supported merely by the word of one witness against another. In any case, it said, the critical question is whether, when the president said he did not recall any such touching, he "knowingly and intentionally gave false testimony."
The lawyers appeared to be setting the stage for Clinton to argue that, while Lewinsky's recollection may be correct, he simply did not remember such physical contact either during his Jones deposition or before the grand jury. Starr, in his report, said it was inconceivable that the president's memory could have failed him on that score. "There can be no contention that one of them has a lack of memory or is mistaken," the report said.
Clinton's rebuttal said that it was "worthwhile to note" the "inaccuracy" of that assertion.
Legal experts said that was unlikely to fly. "The fact that he's lied and continued to try to parse words before the grand jury is tough," said Stephen Saltzburg, a law professor at George Washington University.
In his grand jury testimony, Saltzburg said, Clinton "gave answers that no one will think are truthful. No way he doesn't know whether he ever put his hands or mouth on her breasts. This is not a situation in which one could be remembering it differently from someone else."
Said Yannett, "There's a fair amount of evidence that puts forward a colorable perjury case."
On a number of other counts, the Clinton rebuttal scored what some legal experts said were significant points against Starr's case.
On the charge that Clinton obstructed justice by encouraging Lewinsky not to turn over to the Jones lawyers gifts she had received from the president, the Clinton rebuttal zeros in on the fact that Lewinsky's testimony on that subject conflicts with that of two other people involved: Clinton and his secretary, Betty Currie. In addition, the rebuttal notes that Clinton -- during the same meeting when Starr alleges that Clinton suggested Lewinsky conceal the gifts to avoid turning them over to the Jones lawyers -- gave her additional presents.
On the allegation that Clinton abused the powers of his office by lying to the American people about his relationship with Lewinsky -- an accusation similar to one contained in the articles of impeachment against Nixon -- the Clinton rebuttal confronts the Nixon analogy head-on.
Nixon's false statements "were part of a scheme to obstruct justice through the perjury of his senior staff, through payoffs to criminal defendants and through use of the Central Intelligence Agency to thwart an FBI investigation into crimes in which he was involved," said the rebuttal, signed by Clinton's private attorney David E. Kendall and White House counsel Charles F. C. Ruff, who served as Watergate special prosecutor. "Merely to describe that conduct makes clear how different it is from that of President Clinton and how far the [independent counsel] has been willing to go to synthesize its charges of impeachable conduct."
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