By Susan Schmidt and Joan Biskupic
Independent counsel Kenneth W. Starr said yesterday that the dismissal of Paula Jones's lawsuit will not affect his investigation into whether President Clinton may have committed perjury or tried to obstruct justice in the Jones case.
The ruling by U.S. District Judge Susan Webber Wright "has no effect on our authority and we will continue working to complete the investigation as expeditiously as possible," Starr said in a statement released by his office. "Let's gather all the evidence so we know one way or the other."
Despite their public confidence, however, prosecutors huddled behind closed doors in Little Rock and Washington late yesterday to examine Wright's ruling.
Deputy independent counsel Jack Bennett said that the effect of the Jones dismissal would be more political than legal. Any accusation Starr might ultimately bring against Clinton is more likely to be heard not by a jury but by Congress, a thoroughly political arena and one in which there is virtually no precedent for a case like this. The House of Representatives, which is the venue for impeachment proceedings, has great discretion in what constitutes an impeachable offense; the usual federal rules of evidence do not apply, and any decision is likely to be shaped by public opinion.
But some criminal law experts argued yesterday that the dismissal could make it more difficult in a legal sense for Starr to bring charges against the president related to any false statements he made in the Jones case about former White House aide Monica S. Lewinsky, or any pressure that was brought to bear on her to deny she had had a sexual relationship with the president.
Lewinsky was the starting point, and remains the central focus, of this phase of Starr's investigation. She was subpoenaed late last year by Jones's lawyers to discuss allegations she had had an affair with Clinton while working at the White House. The Jones lawyers hoped that she would support their contention that Clinton had a pattern of preying sexually on workplace subordinates, that Lewinsky had succumbed to the proposition Jones had refused and subsequently was rewarded in her government employment.
In response to the subpoena, Lewinsky filed a sworn statement saying she had had no such relationship with Clinton. But a Lewinsky friend who had tape-recorded conversations in which she discussed Clinton gave Starr the tapes, including comments Lewinsky made about efforts by Clinton and others to influence her testimony in the Jones case. Starr then asked for and received authorization to expand his long-running examination of Clinton's Arkansas financial dealings into whether Clinton pressured Lewinsky to lie under oath, or whether he himself lied when he denied a relationship with her in his own Jones deposition.
The question raised yesterday by legal experts was whether a perjury charge could be brought in relation to a civil case that no longer exists.
Schulhofer and others said that while it is not out of the question that a prosecutor might be able to demonstrate that statements made in a dismissed case were relevant at an earlier time, it would be difficult. A key question is whether the statements had the potential to affect a proceeding at any stage, not merely its outcome.
"It is still a crime to lie under oath and to ask someone to lie under oath, regardless of whether the underlying proceeding is valid," said Rory K. Little, a professor at the University of California at Hastings, and a former assistant U.S. attorney.
Starr's office clearly agreed, even as Bennett acknowledged that "case law is divided" on the perjury issue.
Prosecutors will argue that "the question of whether perjured statements are material in their effect on a judge and jury is assessed at the time such statements are made," Bennett said.
Bennett said his office believes there is no case law about allowing prosecutors to continue to pursue the other potential crimes under investigation subornation of perjury and obstruction of justice.
Prosecutors said the Lewinsky matter would continue to be part of their investigation. The independent counsel's office is preparing a report for Congress on the Lewinsky investigation, and Bennett said Wright's ruling yesterday was "not likely to change our course of action."
But even if Starr determines that there is no legal impediment to going forward with all three prongs of his inquiry into the Lewinsky allegations that Clinton committed perjury, suborned perjury on the part of others, and thus tried to obstruct justice, "that does not speak to the wisdom of proceeding," Little said.
The dismissal of the Jones case "weakens the jury, or public, appeal of the [Lewinsky] case," he said, "when the whole [Jones] case is dismissed as not being valid from the beginning. It's harder to show that the lie made a difference.
University of Oregon criminal law professor Margaret Paris noted that "if this were a regular person" under investigation, and not the president, "a prosecutor would be reluctant to continue" without the underlying Jones case.
Schmidt reported from Little Rock.
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