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Kendall
President Clinton's personal lawyer, David Kendall, announces Wednesday that his client will submit grand jury testimony by videotape. (AP)

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Clinton Will Give Videotaped Testimony to Lewinsky Grand Jury (Washington Post, July 30)

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What Clinton Has Said About His Relationship With Lewinsky

Legal Guide: Untangling the Issues


ANALYSIS
A Bold and Possibly Risky Undertaking

By Ruth Marcus and Dan Balz
Washington Post Staff Writers
Thursday, July 30, 1998; Page A08

President Clinton's decision to submit to questioning by independent counsel Kenneth W. Starr is a bold and potentially risky move in which political concerns may have collided with the legal dangers, and taken precedence.

Slapped with a subpoena by the independent counsel, Clinton faced an unpalatable choice: to defy the summons and risk seeing his support in Congress and among the public erode, or comply, possibly giving prosecutors more ammunition with which to go after him.

A private citizen facing a similar subpoena might well have been advised by his lawyers to assert his constitutional right against self-incrimination. That third option was not seen as politically possible for a sitting president.

As a result, Clinton's encounter with Starr and his prosecutors in the White House on Aug. 17 could be one of the most significant moments of his presidency. "I think he's going to try to thread the needle," said one former Clinton adviser, who added with a sigh, "God, he's walking on a fault line."

Clinton, this source said, is in treacherous waters. "It's one thing for him to get cornered in a deposition on Paula Jones. . . . People can sympathize with that. But in this context, if he sticks to the story and it turns out to be a lie, it's much less forgivable. They're doing this because there are no good options here and they concluded that, given an array of terrible options, this is the only one they can live with."

Those who had actual knowledge about the president's planned testimony were silent yesterday, while others were preoccupied with spinning out possible scenarios. Some imagined an apologetic mea culpa speech before the testimony in which Clinton confessed to transgressions and said he had lied out of embarrassment and to protect his family.

Others predicted a give-no-quarter strategy in which Clinton would steadfastly contradict Monica S. Lewinsky's version of events and gamble on winning the "he-said/she-said" battle in the forum of Congress and public opinion if not before Starr. One adviser said that while the public may have concluded that Clinton is not telling the truth, he cannot risk confirming that publicly.

"Not to say that the public believes him . . . but that's different from his now turning around and saying, 'Nyeh, nyeh, nyeh, I lied to you, so what,' " this Clinton adviser said. "Therefore, I conclude that he's going to stay where he is."

At the White House, political advisers attempted to dash speculation that Clinton would make any public statement about his relationship with Lewinsky in conjunction with his testimony. "That's way down the road," one official said. "We have no plans for that."

Criminal law experts -- those sympathetic to Starr as well as those dubious about the focus of his investigation -- were dumbstruck at the notion that Clinton would take the risk of testifying under oath, particularly in light of Lewinsky's reported account to prosecutors about Clinton's advice about concealing their relationship.

"How can he testify?" asked St. John's University law professor John Q. Barrett, who -- like many others who spoke over the last few days -- was operating under the assumption that Clinton was not telling the truth when he denied having a sexual relationship with Lewinsky.

"Assuming the truthfulness of her reported proffer, he's perjured himself already, and he's stuck with doubling that bad bet by perjuring himself again and in a much more dangerous setting," Barrett said. "The criminal law and political punch of grand jury perjury is much bigger than in the Paula Jones deposition."

On the other hand, said Barrett, "If he's going to confess, I don't see what the point is in doing it in the grand jury. Confession is a strategy that might work in the political sphere and if it works in the political sphere let that swamp the grand jury process."

Lawrence Barcella, a former federal prosecutor who is critical of Starr's probe, had a similar reaction to news of Clinton's agreement to testify. "Not if you had a choice," he said. "Given a choice, you never want your client testifying but sometimes political considerations wholly apart from a lawyer's views end up outweighing those lawyer's views."

Barcella said that was true regardless of whether Clinton is telling the truth. "It doesn't matter, if you have a prosecutor who is intent on trying to find something to charge you with. The idea of having to testify under oath is a problem whether you are telling the truth or not. Those people that believe a grand jury investigation is always a search for truth should line up to buy the Brooklyn Bridge right after they say that."

The fast-changing legal environment kept politicians and strategists busy attempting to assess the fallout from the Clinton and Lewinsky testimony on their own fortunes this fall.

"There's no sense from the [Democratic] caucus of any panic," a Democratic leadership aide said. "Compared to six months ago, we're now so close to the election that people are focused on the fact that we rise or fall with [the president]. There's no strategy that makes sense other than sticking with him, especially when we don't know anything. It's totally out of our control."

There were, however, indications that public comments by Democratic lawmakers may have contributed to Clinton's decision to agree to testify. The statements suggested that leading Democrats had little tolerance for a White House strategy either of attempting to delay testifying or outright refusal to do so.

"People are less tolerant of the 'mulling-it-over, working-it-out stage,' " one Democratic strategist said of lawmakers on Capitol Hill. "It's so close to the election and they're seeing this ticktock end up with a September-October time frame. They're very very nervous."

Still, some Democrats said Clinton could have survived defiance. "I don't think there was any sentiment in the country that he had to acquiesce to what Ken Starr wanted him to do," said Bill Carrick, a California-based Democratic strategist. "I think he could have definitely resisted the subpoena or appealed it. I don't think there would have been any political damage."

Republicans faced the delicate issue of what to do if Starr now sends a report to Congress before the November elections. No one on Capitol Hill knows what form a report might take and whether any of it would be made public, although there is a widespread assumption among Democrats and Republicans that the main conclusions and juiciest facts would quickly emerge.

Republicans risk a political backlash if they mishandle the report. Speaker Newt Gingrich (R-Ga.) told House Republicans yesterday to keep their focus on the legislative accomplishments and leave the issue of Clinton's legal problems to the independent counsel and, if Starr sends a report to Congress before the elections, to House Judiciary Committee Chairman Henry J. Hyde (R-Ill.).

"The speaker will spend the fall out on the campaign trail with a very positive message focused on the accomplishments of the Congress and our future agenda," an aide said. "The media and Henry Hyde will take care of the rest. Regardless of whether there is a report or not a report, that is the speaker's plan."

Hyde would not predict how much the Judiciary Committee would do with a report that arrives before November, saying it would depend on how clear-cut the findings. "If it's A-B-C, that's one thing," he said. "On the other hand, if it's 'War and Peace' . . . " He didn't finish the sentence.

Staff writer Juliet Eilperin contributed to this report.


© Copyright 1998 The Washington Post Company

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