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Kenneth W. Starr leaves his home in McLean, Va., Monday. (AP)


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More Legal Analysis From The Washington Post


President Used Forum For a Counterattack

By Joan Biskupic and Roberto Suro
Washington Post Staff Writers
Tuesday, September 22, 1998; Page A19

While asserting he did not lie in the Jones deposition, President Clinton turned his videotaped testimony before the Starr grand jury into a stage to display his defense strategy.

In an agile four-hour performance, President Clinton repeatedly turned prosecutors' questions to his advantage during grand jury testimony released yesterday, laying down his legal counterattack to the heart of the allegations that could lead to his impeachment: whether he lied when he testified about the intimate details of his sexual relationship with Monica S. Lewinsky.

Clinton explained in greater specificity than in any public statements how he justified his initial sworn denials of a sexual relationship based on the fact that his physical contact with Lewinsky did not include sexual intercourse. He held fast to his previous insistence that he did not commit perjury and did not try to persuade others to lie under oath about his conduct.

But at various points in his testimony, videotaped Aug. 17, the president also claimed a faulty memory and declined to answer or sidestepped questions. He also lashed out at prosecutors, saying they were trying to corner him. He also vented his anger over the Paula Jones sexual harassment case he declared was "funded by my political opponents" and intended to "hurt me politically."

"Clinton seems to have foreseen most of the questions that were put to him and to have gone in there well-prepared to lay out his defense," said Stephen A. Saltzburg, a law professor at George Washington University.

Further, in hundreds of pages of sworn testimony by Lewinsky also released yesterday by the House Judiciary Committee, the former White House intern repeatedly states that neither Clinton nor any of his associates ever encouraged her to illegally cover up their sexual encounters. In a previously undisclosed document she lends support to his contention that they did not have a full sexual relationship because they did not engage in intercourse.

Commenting on Lewinsky's description of her relationship with Clinton, a lawyer close to the defense team said yesterday, "When you, in fact, compare the transcripts, you're going to see that they [Lewinsky and Clinton] are on the some page on many of the same things: it was very incomplete sexual relations and she was not encouraged to lie."

The widely broadcast testimony not only put Clinton on display but also illuminated the prosecutors' tactics. Although never seen on camera, independent counsel Kenneth W. Starr and three members of his team were heard grinding away at Clinton, often asking numerous variants of the same question, picking Clinton's statements apart word for word and sometimes addressing the president with marked incredulity.

Despite the prosecutors' best efforts to get him to directly answer questions, Clinton seemed intent on pursuing his own agenda both on specific legal issues and broader political concerns, according to legal experts.

"Look, I'm not trying to be evasive here," the president said as prosecutors tried to poke holes in his earlier statement. "I'm trying to protect my privacy, my family's privacy, and I'm trying to stick to what the deposition [he gave last January in the Paula Jones case] was about. . . . I don't believe that I should be required to go beyond my statement."

While he was taciturn on some points, Clinton was expansive elsewhere.

"In one sense Clinton made a terrible witness because he constantly violated the rule that short answers are always the safest because the more you say the more there is to come back and haunt you," said Peter Arenella, a law professor at UCLA.

But Arenella added, "Clinton seems to consider this video as something that would inevitably go to the public, and he used his testimony to lay out his political defense."

Criminal defense lawyer Laura Ariane Miller said it may help Clinton with the public and with Congress that he talked about the weight of issues on a president's mind and how much daily pressure he is under even without a lawsuit to worry about. "The Starr report had portrayed him as purposefully evasive," Miller said. "But he seemed genuinely not to be certain on . . . precise dates and times of conversations. At a human level, it's credible."

Overall, it was a more complete Clinton than was presented in the report Starr had sent to Congress. He reminded prosecutors -- and the American people watching yesterday -- that he felt embattled by the Paula Jones case.

"I was doing my best to be truthful," he said of the way he answered the Paula Jones lawyers. "I was not trying to be particularly helpful to them."

At several points during his testimony, Clinton laid out arguments to counter Starr's assertion that he had perjured himself in the Jones deposition when he denied having a sexual relationship with Lewinsky, and it was a defense on several fronts.

Both Clinton and Lewinsky have testified consistently that they never engaged in sexual intercourse, and Clinton repeatedly cited that fact in what he depicted as a common sense understanding of what constitutes a sexual relationship. "I'll bet the grand jurors, if they were talking about two people they know, and said they have a sexual relationship, they mean they were sleeping together; they meant they were having intercourse together," Clinton said.

In his report to Congress, Starr flatly rejects this explanation and alleges that Clinton committed perjury both in the Jones deposition and in the grand jury testimony when he relied on intercourse as the threshold for deciding whether there was a sexual relationship. "That testimony is not credible," Starr wrote in urging Clinton's impeachment, insisting that "the president could not have believed" he was telling the truth about the relationship.

If this case were going before a jury, Starr would have to prove beyond a reasonable doubt that Clinton deliberately lied when he said this was his belief. Lewinsky's initial statement to Starr's office, which was also released yesterday, offers Clinton support on this point. Although she acknowledged performing oral sex on him, Lewinsky said when she signed an affidavit in January denying a sexual relationship with Clinton "she could justify [it] to herself that she and the President did not have sexual intercourse."

"As strained as this argument may seem, the question is whether this is the definition he had in his mind at the time," said Saltzburg.

Ultimately, the prosecutors' case for perjury may rest on the one key point about their sexual encounters on which Clinton and Lewinsky's stories most starkly differ: whether he touched her breasts and other intimate parts of her body. Asked whether he continued to maintain that no such touching occurred, Clinton told the grand jury, "That's correct."

But Lewinsky has given detailed descriptions of his intimate touching during 10 separate sexual encounters.

When a lawyer close to the defense team was asked yesterday to explain the conflict, he did not dispute the discrepant facts, but said they ultimately would be weighed on a political basis. "If you get to that, you're a million miles away from an impeachable offense."

In his testimony, Clinton also minimized the importance of the gifts he had given Lewinsky and thus the efforts by his secretary Betty Currie to retrieve the presents, which have been cited by Starr as evidence of obstruction of justice.

Clinton said Lewinsky had given him a Christmas present last December, and he, in effect, wanted to return the gesture. He also said he was simply in the habit of giving people gifts.

Clinton acknowledged trying to keep Currie from knowing the depth of his relationship with Lewinsky. That prompted a prosecutor to ask, "Well, not only did you not try to involve her, you specifically tried to exclude her and everyone else, isn't that right?"

Clinton quickly rejoined that such a question was "almost humorous," given the situation. "I'd have to be an exhibitionist not to have tried to exclude everyone else."


© Copyright 1998 The Washington Post Company

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