Clinton's Fate May Ride On Obstruction Case
By Ruth Marcus and Michael Grunwald
Independent counsel Kenneth W. Starr has been investigating whether Clinton's dealings with Lewinsky amounted to obstruction of justice by the president. And with a growing sentiment among key members of Congress who would decide the case that Clinton could survive if he did no more than lie about a private sexual relationship, the obstruction question may settle the president's legal and political fate.
But proving criminal obstruction hinges on nuance, context and -- in Clinton's case -- details that Lewinsky presumably provided to the grand jury yesterday but that are not yet publicly known.
The basic federal corruption of justice statute makes it a crime to "corruptly" try to "influence, obstruct, or impede the due administration of justice." A companion section of the law, on witness tampering, makes it a crime to "cause or induce any person to withhold testimony, or withhold a record, document, or other object, from an official proceeding." Clinton could also face charges for subornation of perjury, or encouraging someone to lie under oath.
The wording, timing and context of Clinton's reported discussions with Lewinsky will be critical in establishing whether he sought to obstruct justice in the Jones sexual harassment lawsuit.
"It's a delicate dance," said Boston criminal lawyer Harvey Silverglate. "The line between innocent activity and obstruction of justice basically boils down to corrupt intent. But it's not always easy to prove corrupt intent."
For example, were the president and Lewinsky simply discussing how to conceal a sexual relationship, or were they plotting how to hide their involvement from lawyers in the civil suit? Did Clinton know she had been subpoenaed in that case, or was about to be, when they discussed their involvement? What exactly did he say? Did he discuss returning the gifts to presidential secretary Betty Currie in the context of the Jones lawsuit and the subpoena for them? Were efforts by Clinton's close friend, Vernon E. Jordan Jr., to obtain a job for Lewinsky conditioned -- explicitly or implicitly -- on her denials in the civil suit?
Although they discussed "cover stories," sources familiar with Lewinsky's latest account say she has not told prosecutors that the president directly instructed her to lie about their relationship to lawyers for Jones.
Clinton need not have been absolutely explicit, or have directly ordered Lewinsky to lie or withhold evidence, in order to be open to obstruction charges. Especially given his role as president, even a subtle suggestion could be taken as an improper attempt to influence the proceedings, some lawyers said.
In a 1988 case involving then-Rep. Mario Biaggi (D-N.Y.), a federal appeals court upheld Biaggi's obstruction conviction for coaching an associate who had paid for spa trips to Florida to disguise their true purpose. "You didn't give it to me because I'm a member, member of Congress," Biaggi told the associate during a phone call.
In a 1990 case, United States v. Tranakos, a different appeals court took a similar approach in rejecting a defendant's claim that he had never directly urged a witness to lie to a grand jury. "The statute prohibits elliptical suggestions as much as it does direct commands," the court said.
Washington criminal defense lawyer Robert Luskin, who represented a federal judge accused of obstructing justice by lying to FBI agents, said Clinton's legal situation depends on the context of the conversations.
"If he said, 'Hillary will kill me if she finds out, promise me that if the question's asked you won't say anything about it,' that would be one thing," he said. "If the conversation is in the context in which you know that the person you're talking with is or is likely to be a witness in a pending proceeding, then you've got a problem."
Courts have found defendants guilty of the required corrupt intent even when their underlying motivation may have been understandable -- for example, to shield others from embarrassment or harm. In a 1981 appeals court case, U.S. v. Faudman, a corporate executive admitted altering and defacing the records of a company under investigation for Medicare fraud. He argued unsuccessfully that he only obstructed justice to protect his brother, another corporate executive, and the company he had spent his life building.
"The acts of the defendant in the present case were aimed at distorting the evidence to be presented by the company and were intended to impede the administration of justice," the court said in rejecting his claim.
Likewise, in a 1993 case, U.S. v. Barfield, the court rejected a defendant's claim that he could not be convicted of obstruction because the government never showed that he stood to gain personally. The court said the government had only to "show that the defendant knowingly and intentionally undertook an action from which an obstruction of justice was a reasonably foreseeable result."
Using the obstruction of justice statute to attack improper behavior in civil litigation -- in Clinton's situation, the Jones sexual harassment lawsuit -- would be unusual but not unprecedented. Last April, a federal district judge in New York refused to throw out an obstruction case against two former Texaco officials accused of withholding and destroying documents in a private discrimination lawsuit.
The judge said that while "cases involving prosecutions for document destruction during civil pretrial discovery are notably absent" from the case law, the Texaco executives' alleged conduct could still constitute a criminal violation.
The obstruction statute's prohibition against interference with "the due administration of justice" is aimed at ensuring "a free and fair opportunity to every litigant in a pending cause in federal court to learn what he may learn (if not impeded or obstructed) concerning the material facts and to exercise his options as to introducing testimony or such facts," the judge wrote.
But the Texaco case also suggests difficulties that Starr -- or Congress -- could encounter in accusing Clinton of obstructing justice. Stanley M. Brand, former Democratic general counsel of the House of Representatives who represented ex-Clinton adviser George Stephanopoulos when he was called to the Starr grand jury, noted that the two Texaco executives were later acquitted, despite the existence of tape recordings of their conversations. "We're going to purge . . . out of these books," one executive said in tapes that were played at the trial. "Shred 'em and get rid of 'em," he said at another point on the tape.
"Those guys were on tape," Brand said. "Here it's subject to nuances of people's memory and contradictions in their view of what happened and it's all circumstantial. . . . The history of obstruction cases in my experience is, it's very difficult to make. People don't construe intent against people in the ordinary course unless there's some real whiz bang evidence."
That is why the testimony of third parties like Jordan or Currie -- to whom Lewinsky returned gifts from the president instead of complying with the Jones subpoena -- could be critical to Starr's case. "Absent Secret Service or butler testimony about what went on behind closed doors between the president and Ms. Lewinsky, that will ultimately be a he said/she said," said former prosecutor Bruce Yannett. "Similarly, what precisely was said about how she should testify will ultimately be a he said/she said. When you have third parties getting involved, like Ms. Currie with the gift or perhaps Vernon Jordan with the job, that's perhaps where Ms. Lewinsky's credibility is less central."
As Lewinsky appears before the grand jury, a dress she turned over to prosecutors is tested for DNA evidence and Clinton prepares for his own Aug. 17 testimony, "It's a very perilous situation for the president," said Washington criminal defense lawyer Randall Turk. "He doesn't know what Starr has; he doesn't know the details. And obstruction is a charge that tends to come down to the details."
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