Washington Post Staff Writers
Sunday, August 16, 1998; Page A1 When he has had to give sworn testimony in the past, President Clinton spent long hours, day after day, in practice sessions where his lawyers cross-examined him the way hostile interrogators would and coached him on his responses.
But as Clinton prepares for his testimony tomorrow to a grand jury investigating his relationship with Monica S. Lewinsky, his lawyers complain that they have not gotten enough of his time. On Thursday, he kept them waiting in the White House residence until after 5 p.m. On Friday, he whiled away his evening playing cards and word games with friends. Finally yesterday, he spent five hours with his legal team, but took a break to go jogging and play with his dog, Buddy.
The two approaches gave a glimpse into the coming confrontation that looms so large for the Clinton presidency. While prosecutors arm themselves with as many facts as they can assemble, the most critical preparation for the president, according to advisers, has turned out to be his own lonely struggle over whether to admit a relationship with Lewinsky despite his past denials, as he now appears poised to do. For in the end, only Clinton can decide to alter his version of events.
"The thing that's sad about it is it's so contrary to his nature," an adviser said of Clinton's nearly solitary deliberations.
Starr, for his part, has had the benefit of knowing from news accounts what Clinton is reportedly considering, giving him ample notice to set his own strategy. If Clinton were to acknowledge engaging in sexual activity with Lewinsky, Starr would be able to dispense with long lines of questioning intended to establish that such a relationship took place.
But after seven months of investigating, Starr has given no public indication that he would simply accept an assertion by Clinton that he was technically truthful, if not fully forthcoming, in his deposition in Paula Jones's civil lawsuit.
Instead, relieved of having to prove a sexual relationship, Starr likely would try to pin down whether Clinton was intentionally deceitful as defined by the perjury law. And he would concentrate on whether Clinton suborned perjury or obstructed justice by trying to influence Lewinsky to lie in the Jones case.
No matter what else he says tomorrow, advisers said, Clinton will continue denying any illegal attempt to cover up a relationship. Lewinsky has testified that he never directly asked her to lie in the Jones case, according to sources, although she said they discussed "cover stories" intended to disguise an affair generally. Clinton will be pressed to explain those conversations as well as to say whether he arranged job help for her to win her sworn denial of an affair and whether he encouraged her to return gifts he had given her to his personal secretary to avoid turning them over in response to a Jones team subpoena.
On Familiar Turf
Clinton's fateful 1 p.m. appointment with the grand jury will take place not in the unfamiliar chambers at the federal courthouse, but in the storied Map Room at the White House. This was the ground-floor room beneath the residential quarters where Franklin D. Roosevelt stopped each morning on the way to the Oval Office during World War II to check out maps showing troop movements. Still on the wall today is a map showing Allied troops closing in on Berlin on April 3, 1945, the last map Roosevelt saw before leaving for Warm Springs, Ga., where he died nine days later.
Clinton, who has used the room to meet with visitors and hold coffees for campaign contributors, has testified there twice before, both times in Whitewater bank fraud trials involving Arkansas associates. But this will be the first time any president has testified in a grand jury criminal investigation of his own actions.
While the 23 grand jurors will not be there, they will watch through a one-way live television hookup and will be allowed to pass questions through a prosecutor who will be able to call colleagues at the White House. Government technicians will use sophisticated encryption technology to avoid any interception of the closed-circuit feed.
Gathered in the Map Room will be an elite cast of characters who have shadow-boxed with each other for years all, it seems now, in preparation for this one climactic moment of confrontation.
On the one side will be Starr, appointed four years ago this month to look into an obscure land deal in Arkansas only to find himself heading down many other scandal trails. Joining him will be a handpicked cadre of lawyers who have immersed themselves in every facet of the Lewinsky matter for seven months. On the other side will be his longtime quarry, Clinton, along with a triumvirate of lawyers who have steered the president through roiling legal waters repeatedly and now face their greatest challenge in helping him avoid criminal or impeachment jeopardy.
While the independent counsel's office refused to say which lawyers would attend, Starr seems likely to leave the questioning to deputies who most often have taken the lead in interrogating other witnesses before the grand jury.
Jackie M. Bennett Jr., Starr's chief deputy in Washington, has perhaps the deepest knowledge about Clinton. A veteran of the Justice Department's public integrity section, Bennett has attended previous depositions of Clinton and tried Whitewater-related cases in Arkansas. His aggressive and unpredictable questioning style have earned the enmity of Clinton's legal team. The day-to-day manager of the Lewinsky investigation is Robert Bittman, a former state prosecutor in Anne Arundel County. Bittman's background, which includes sex crime prosecutions, may make him less reticent about posing intimately detailed questions to Clinton. Solomon L. Wisenberg, a former federal prosecutor in Texas, has spent more time with the grand jury than anyone in Starr's office and may have the best command of evidence in the case.
Michael Emmick, an associate counsel known for his sympathetic style in dealing with witnesses, may show up as well because of his central role in dealing with Lewinsky from the first day she was confronted at an Arlington hotel Jan. 16.
At the president's side during the questioning will be David E. Kendall and Nicole K. Seligman, his longtime attorneys from the Williams & Connolly law firm, along with White House counsel Charles F.C. Ruff. Lawyers normally are not permitted in the room during grand jury questioning, but Starr agreed to make an exception for Clinton.
It was unclear whether Clinton lawyers will be able to raise objections or assert legal privileges. One lawyer knowledgeable about the upcoming session said their presence provides "a comfort factor" for Clinton.
Lights, Camera, Testimony
Taking testimony from the president is a matter that goes far beyond mere questions and answers. It takes stage management too.
Everything from camera angles to lighting to the demeanor of the players will be carefully choreographed for maximum advantage. Assuming they follow the same procedures as the past, for example, Starr's office will not allow any trappings of presidential power to be seen in the camera picture that will be transmitted to the courthouse.
"All of these things can make a witness look better or worse, and therefore more or less credible," said Bruce Yannett, a former Iran-contra prosecutor. "If a camera is zoomed in very tight on the president's face, every mannerism is exaggerated. ... If there's a shadow cast and the president's dark under his eyes, it would make him look more shady."
To prepare for that, Kendall won permission from a federal judge last week to watch the sealed videotape of Clinton's Jan. 17 deposition in the Jones case to see how he responded and coach him accordingly. (Each side paid for its own video team during that deposition, but both tapes remain in the custody of the court.) Throughout that deposition, Clinton kept talking in such low tones that his lawyer in that case, Robert S. Bennett, continually told him to speak up. At least twice, though, Clinton reacted angrily to questions posed by Jones's lawyers.
The Jones team deliberately picked one of its younger lawyers, James A. Fisher, to question the president because of his baby-faced appearance and innocent-seeming style. Starr's prosecutors can be expected to ask detailed and sometimes uncomfortable questions, but it was not clear how adversarial they will be.
Prosecutors face a potential hazard in interrogating a president, particularly because of the delicacy of the subject matter. How pointed should they be if the president tries to dodge questions? How intrusive about his sex life? Prosecutors, like the president, must be careful how they come across to grand jurors and perhaps ultimately to Congress. Just as Clinton cannot afford to appear evasive or untruthful, Starr's lawyers will not want to look disrespectful.
"They have to be respectful, but ultimately in terms of the questions, they'll ignore the fact that he is president," said John Bates, a former Starr deputy who took depositions from Clinton related to Whitewater matters. "If they have to do very specific questioning, they will treat him as any other witness."
Another lawyer familiar with Starr's operation agreed: "He is the president they are certain to want to seem professional and courteous. But if he tries to weasel out of questions, they are going to confront him with what they have."
An Insider Advantage
Clinton has an advantage not every witness has: He knows in advance what many of the questions will be and he knows what most other players have said.
Kendall is at the hub of an extensive network of lawyers representing other witnesses. Under a joint defense agreement, those lawyers have shared with him information about what their clients, including top aides, White House lawyers, secretaries and Oval Office stewards, have told the grand jury. Kendall also obtained details about the testimony of other key players through the back channels of the tightly knit defense bar, including Clinton friend Vernon E. Jordan Jr. and Secret Service officers.
Lawyers knowledgeable about how Clinton has been prepared for previous depositions in the Whitewater investigation said he will want to avoid appearing as if he has benefited from inside knowledge of the testimony of others to tailor his own testimony.
"You don't want him to be overprepped in the sense that he's canned," said a lawyer familiar with the process. On the other hand, it is important to understand possible land mines that might provoke his ire and cause him to say something unwise. "You see what pushes his buttons," the lawyer said.
The first and most important thing for Clinton to do in his preparations would be to go over his own testimony in the Jones case, because that will be the base against which any statements tomorrow will be judged. He must know cold whatever he said under oath the first time because any alterations must be explained or could be cited in building a perjury case against him.
His lawyers also would be likely to show him documents that might undercut his position, such as White House logs showing Lewinsky's frequent visits after she was transferred out of the White House to the Pentagon, and ask him to explain them.
In preparing Clinton, Kendall and Seligman would have to proceed gingerly, according to lawyers versed in the procedure. They would not want to tell Clinton directly what others have said, lest he be asked by Starr's deputies about what his lawyers have told him.
Kendall likely will ask questions he thinks prosecutors will ask, lawyers said, and when he gets answers inconsistent with others' testimony, he will probe more deeply, letting Clinton find a way to construct his answers. If Clinton's lawyers want him to know that someone else is flatly contradicting him, they can tell him and let him assert to the grand jury that his lawyers have told him what the other witness has said but that he does not recall events the same way.
What neither Clinton nor his lawyers apparently will know is whether Starr has perhaps the most important physical evidence in his investigation the blue dress Lewinsky turned over to prosecutors that she said was stained with the president's semen. Several lawyers close to the investigation said they did not expect Starr to ask Clinton for a DNA sample to compare with any sample from the dress until after he testifies, so he will not know in advance whether the FBI actually found semen on the dress.
Starr's lawyers could challenge Clinton to explain why aspects of his story conflict with the testimony of others, or they simply could pose direct questions without revealing to Clinton how his statements are contradicted by other evidence.
"Clinton might not know the full extent of the evidence they have when he leaves," said one lawyer familiar with the investigation.
Still, some of that would be moot if Clinton acknowledges engaging in some sexual activity with Lewinsky. Moreover, those who have interviewed him in the past warn that the president is an able witness, even if confronted with surprises. During the Jones deposition, he gave vague and inconclusive answers to many of the questions, often saying things like "I think" something may be true but "I don't recall." The imprecision of those answers may help him defend against any perjury charge.
Dan Guthrie, a Dallas lawyer who questioned Clinton during a deposition for the Whitewater-related trial of his client, banker Herby Branscum Jr., said the president was a convincing witness.
"His body posture, his gestures, his eye contact, all were excellent," said Guthrie, who used Clinton's testimony to help acquit his client. "Keep in mind he's been around the block a time or two." Reporters "have probably given him better training in the press corps than Starr's office could. He's used to thinking on his feet."
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