By Susan Schmidt and Amy Goldstein
Chief U.S. District Judge Norma Holloway Johnson issued a written order more than a week ago rejecting Lewinsky's claim she had a legally binding agreement with Starr to shield her from prosecution in exchange for testimony, according to the individuals. Johnson sent the order privately to lawyers in the case but has yet to enter a formal ruling, they said.
Although Lewinsky's lawyers promised to appeal it, Johnson's decision could give new momentum to Starr's investigation of whether President Clinton lied under oath in the Paula Jones sexual harassment lawsuit about a sexual relationship with Lewinsky and urged others to do the same. The probe has been slowed in recent weeks by a variety of legal disputes over grand jury testimony of several critical witnesses -- from Lewinsky herself to Secret Service agents and White House aides.
Lewinsky's lawyers have been sparring with Starr's office for more than two months over a written agreement for Lewinsky's grand jury testimony. Her lawyers insisted it was binding, while prosecutors ultimately rejected the agreement because one of her lawyers, William H. Ginsburg, refused to allow them to interview Lewinsky and assess her truthfulness before they signed off on the deal. The two sides presented day-long oral arguments to Johnson behind closed doors March 5, and progress in obtaining Lewinsky's version of events has been on hold since then.
Ginsburg has made repeated public denials in recent days that the judge has made any decision. Just yesterday, he insisted to The Washington Post, "I haven't heard a thing about that. Not one bloody thing."
Lewinsky's Washington-based attorney, Nathaniel H. Speights, said yesterday there has been no formal ruling but would not say whether the judge had otherwise communicated what her decision would be. He indicated he plans to take the matter to the U.S. Circuit Court of Appeals if the judge rules against Lewinsky.
But R. Peter Straus, a New York communications executive engaged to Lewinsky's mother, Marcia Lewis, said yesterday that Lewis told him the judge had made her decision about a week ago. "It was supposed to be under wraps," Straus said.
Straus said his understanding was that Johnson had told prosecutors and Lewinsky's attorneys that she had decided to deny immunity but that the judge had not yet entered a written ruling. Other sources confirmed that Johnson has issued the written order, which will be followed by her legal ruling.
Charles Bakaly, a spokesman for the independent counsel, said the office had no comment, adding that lawyers on both sides of the immunity dispute were under strict orders from Johnson not to comment on any aspect of the sealed proceedings. Neither David E. Kendall, the personal lawyer for Clinton, nor White House spokesman Jim Kennedy had any comment on the decision.
A written proffer of what Lewinsky was prepared to tell the grand jury acknowledges a sexual relationship with the president but is murkier on the question of whether she was pressed to lie about it by Clinton or his longtime friend, lawyer Vernon E. Jordan Jr., legal sources said. The proffer also omits mention of the origins of the so-called talking points, a three-page document Lewinsky allegedly gave to her onetime friend Linda R. Tripp that coached Tripp to lie to the Jones lawyers in her own testimony.
Prosecutors now have several ways to proceed with Lewinsky: They can ask her to provide a more detailed proffer and if she does so offer her immunity from prosecution and take her before the grand jury; they can compel her testimony before the grand jury by having a judge grant her limited immunity for the matters she testifies about; or they can indict her for perjury or subornation of perjury.
From the beginning, Lewinsky has been key to any case of obstruction that Starr might build against Clinton in connection with the now-dismissed Jones civil lawsuit. While she denied to Jones's lawyers in a sworn affidavit that she ever had a sexual relationship with the president, Lewinsky told Tripp in secretly tape-recorded conversations that they had an 18-month affair and that Clinton wanted her to deny it under oath.
After Tripp took those tapes to Starr in January, his office tried to win Lewinsky's cooperation from the first day they confronted her at the Ritz-Carlton Hotel at Pentagon City, only to be frustrated by difficult negotiations with her lawyers. Contentious talks ultimately broke off in February when Ginsburg asked Judge Johnson to enforce the immunity deal.
The long delay while they fought that out in court has left the grand jury investigation seemingly paralyzed. While waiting, however, Starr's investigators have chased numerous leads in an effort to corroborate the story Lewinsky told Tripp on tape, from seeking records of her book purchases to obtaining her credit report to interviewing several friends in whom she reportedly confided that she was involved with the president. But ultimately, without their star witness, prosecutors could make only so much progress and after an initial flurry of activity that included repeat appearances by Jordan and several close Clinton advisers, only a handful of less-central witnesses have appeared before the grand jury in recent weeks.
Still, Lewinsky may no longer be as indispensable a witness as once thought. Starr has gathered other independent evidence and testimony even without her. And Ginsburg's repeated public statements that there was no sexual relationship and that his client sometimes exaggerated and fantasized may undermine her credibility if she eventually testifies she did have sex with Clinton.
In addition to Lewinsky, Starr is seeking Clinton's version of events, but he has so far shown no willingness to testify. Tripp is a cooperating witness, but her appearance also has been delayed as Starr awaited the Lewinsky ruling.
Speights ridiculed the notion that Starr would indict Lewinsky for perjury. "He has told us on more than one occasion that he has no intention of indicting her," he said. "And I don't know how he would do it. . . . No one is going to stand for somebody being indicted for having a sexual relationship with the president."
Speights said that Starr already knows everything Lewinsky would tell a grand jury and that she would not change her story. "She's been willing to cooperate since the first day, Jan. 16, but she's not going to lie for them," he said. "She's told them everything. . . . She's been completely candid and open with them. She's given them all the personal records from her home and computer. . . . She's not tried in any way to not cooperate with them. But there are some limits."
He minimized the importance of the dispute before Johnson, saying Starr would have to give Lewinsky immunity one way or another if he wants her to testify. "It doesn't matter to us," he said. "That ruling really is immaterial."
"Even if she rules against us, it's not going to stand up in a court of appeals because it's impossible for you to give me a piece of paper and say, 'If you agree with this, sign it,' and then say, 'Oh, it doesn't count,' " Speights said. "She's a very pro-government judge and I don't deny we'll have difficulty with some of the rulings. But I think the law on this is crystal clear."
The Johnson order stayed under wraps for more than a week because she has conducted the proceedings under a strict secrecy code, threatening to punish lawyers who discuss sealed matters. But Ginsburg's public comments added confusion to whether Johnson had in fact made a decision. On April 21, Ginsburg appeared on CNN's "Larry King Live" insisting he had "seen neither an order nor an opinion" on the immunity dispute and adding, "I have no indication" that Johnson was close to reaching a decision. Johnson had already issued her order by then, sources said, and the next morning Starr and two of his assistants rushed to her chambers to protest Ginsburg's comments.
Criminal law experts said they had expected Ginsburg's motion to be denied. "Based on the publicly known facts, I am not at all surprised that Judge Johnson rejected Ms. Lewinsky's motion," said Bruce Yannett, a former federal prosecutor.
"Typically, an immunity agreement contains language which makes the grant contingent on complete cooperation. Here the cooperation appears to be nonexistent." In addition, he said, "it would be unusual in a case like this for a prosecutor to grant immunity before having had the opportunity to personally assess the witness's credibility."
"I'm actually surprised that this one took a while because of the various issues that are pending before her . . . this one seems like the easiest," said St. John's University law professor John Q. Barrett. "It comes down to whether there was a signed deal. . . . It seems pretty clear that Ginsburg never had that. Whatever he had that was progressing never made it to an agreement. A draft of language to consider is not the same thing as something that's an agreement. I'm sure Judge Johnson just looked at the record and didn't find a contract."
Staff writers Ruth Marcus, Peter Baker and John Mintz contributed to this report.
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