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Full text of Starr's report and the White House response are available online.

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The Legal Gamble: To Say Just Enough (Washington Post, Aug. 18)

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Legally, Politically, President Is Boxed In

By Ruth Marcus
Washington Post Staff Writer
Tuesday, September 15, 1998; Page A01

As his party demands that President Clinton jettison his lawyers' arguments, Clinton finds himself in an excruciating box, left with a choice between alienating those he needs to survive or potentially making himself vulnerable to even greater jeopardy both in Congress and in court.

On the one hand, it became painfully clear to Clinton's team yesterday that his legalistic, definition-parsing defense on the issue of lying was not convincing lawmakers to turn away from impeachment proceedings but rather further inflaming their anger at the president.

On the other hand, the alternative approach demanded by Democratic leaders -- to stop what Senate Minority Leader Thomas A. Daschle (D-S.D.) called the "legal jousting" and simply say he lied under oath -- poses grave risks for the president both in Congress as it considers whether to launch a full impeachment inquiry and in the hands of independent counsel Kenneth W. Starr.

While Clinton has admitted an improper relationship with Monica S. Lewinsky, he and his lawyers have maintained that he didn't lie when he testified that what they did together did not amount to sex under the definitions he was given in legal proceedings. But those semantics are appearing to achieve nothing but making Clinton's potential allies as angry as his enemies.

"He's in a box," said Democratic political consultant Dane Strother, who is working for several gubernatorial and congressional candidates this year. "On one hand, he can't stand up and say, 'I absolutely broke the law.' There are legal ramifications if he does that. But there are political ramifications if he doesn't."

In Congress, as infuriating as lawmakers may find Clinton's "absurd legalisms," as Sen. Fred D. Thompson (R-Tenn.) put it yesterday, Clinton might be even more seriously wounded by admitting to crimes or actions that in effect amount to crimes. Such a presidential admission could basically give Republican lawmakers the rope with which to impeach the president and Democrats little choice but to go along or to otherwise look like they were defending an admitted lawbreaker.

"What they [Democrats] want us to do is help make it go away, but I'm not sure the course they're recommending is going to make it go away as quickly as they like," one senior White House official, who is not on the legal team, said yesterday.

"If he drops the mumbo-jumbo he's in jumbo trouble," said Leonard Garment, who served as Richard M. Nixon's White House counsel during Watergate. "He weakens his position to deal because then he has no position other than to bend his neck to the executioner's ax."

Moreover, the Starr investigation remains a live problem for the president. Although Starr has so far decided that it would not be wise to indict a sitting president, he has not absolutely rejected doing so, and the law is unclear as to whether such a thing is allowed.

While an indictment scenario has been considered only a remote possibility, legal experts said yesterday that Starr's office might pursue that course if Congress concludes that Clinton committed crimes but that those actions did not rise to a level of gravity requiring removal from office.

In addition, nothing would prohibit Starr, if he chose, from indicting Clinton for crimes arising from his relationship with Monica S. Lewinsky after he leaves office.

"This is a classic example where there's a conflict between what a good lawyer's advice is to a client to limit a client's future criminal exposure and good political advice," said UCLA law professor Peter Arenella. "It's easy for a Democratic congressman to say 'fess up to committing the crime of perjury and I'll just slap your wrist for censure.' They're not the ones who might face future criminal prosecution, much less the stigma of admitting to a significant crime." Similarly, the Democrats are in the minority in the Congress that will decide on impeachment.

"Common sense says that there are risks involved in dropping the legal defense in a way that is an admission" of criminal wrongdoing, said John Bates, a former deputy independent counsel for Starr. "If they can find a way to drop the hair-splitting but still not put themselves in that corner, then that's a good idea for them to do."

But there was no obvious way yesterday for Clinton to thread that needle.

The fundamental problem for the president appears increasingly likely to be his grand jury testimony Aug. 17. Lawmakers appear inclined to treat lying before a grand jury more seriously than lying in a civil case -- Paula Jones' sexual harassment lawsuit, in this instance -- particularly one that is later dismissed. And while Clinton could argue that he simply panicked and made a bad decision not to tell the truth when surprised by Jones' lawyers in his Jan. 17 deposition, he had months to prepare for what to tell the grand jury, so that any misstatements were knowing and deliberate.

Starr's report offered what a number of legal experts said they considered a strong case that Clinton did not tell the truth during his grand jury appearance. Even granting Clinton's counter-intuitive and tortured reading of the definition of "sexual relationship" used by Jones' lawyers, Clinton faces the difficulty of defending the truth of what the Starr report described as his "implausible" "hands-off" relationship with Lewinsky, in which she touched him in intimate ways but he supposedly never laid a hand on her.

Although he sought to avoid providing graphic description of their sexual encounters, Clinton said during his grand jury testimony that "I did not have sexual relations, as I understood this term to be defined."

Asked the prosecutor: "Including touching her breast, kissing her breast, touching her genitalia?"

Clinton: "That's correct."

That directly conflicts with Lewinsky's detailed account of 10 encounters during which Clinton fondled her, testimony corroborated by her accounts at the time to numerous friends and family members.

So far, Clinton's lawyers have neither disputed nor accepted Lewinsky's version of the facts but have merely suggested that the two sets of recollections differ, that Clinton could plausibly not remember the details of what he did with Lewinsky and that because a person accused of perjury must know his statement is false there is not enough to support criminal charges against the president.

Columbia University law professor Gerard Lynch said the quandary facing the president is inherent in the existence of the independent counsel statute and the broader criminalization of politics.

"If we're going to put our political leaders in a position where they're going to have to conduct their lives like suspects in criminal investigations, then we shouldn't be surprised they conduct their lives as the subjects of criminal investigations," he said. "The president is in a position and has been from the start of this where either he acts presidential at some risk to his legal position or he acts like someone who's got a grand jury breathing down his neck in which case it's hard to act presidential."

Staff writers Susan Schmidt and Terry M. Neal contributed to this report.


© Copyright 1998 The Washington Post Company

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