By Susan Schmidt
Lewinsky had contested a lower court's decision that she does not have a legally binding immunity agreement with Starr that shields her from prosecution in exchange for her testimony. But a three-judge panel dismissed that claim, saying an appellate court review of issues in a criminal case can occur only after conviction and sentencing.
Starr's investigation of the president has been slowed considerably by his inability to obtain Lewinsky's testimony. His office tried to win the former White House intern's cooperation after opening the Lewinsky probe in January, but negotiations broke off in February after her attorneys submitted a written proffer of what she was prepared to testify to in exchange for immunity from prosecution. William H. Ginsburg, Lewinsky's lawyer, insisted he had an agreement from prosecutors accepting the proffered testimony, but Starr said his office had never signed off on the deal.
Chief U.S. District Judge Norma Holloway Johnson ruled in a sealed decision last month that no binding immunity agreement existed.
Ginsburg has steadfastly insisted in recent weeks that there had been no ruling from Johnson on the immunity agreement. Yesterday, asked about the appeals court's public dismissal of Lewinsky's appeal of that ruling, Ginsburg referred questions to a spokeswoman, Judy Smith, who had no comment.
Prosecutors rejected the proffer from Lewinsky because they were unable to interview her to assess her truthfulness, and because the offered testimony contained no information about a central piece of evidence in the Lewinsky probe -- the so-called talking points she allegedly gave to Linda R. Tripp, the erstwhile friend who secretly taped hours of conversation with Lewinsky. The three pages of talking points coached Tripp about what to say to lawyers for Paula Jones when she gave a deposition in Jones's sexual harassment suit against the president.
Lewinsky's proffer did acknowledge a sexual relationship with Clinton, lawyers familiar with the matter said, but it was less definitive on the question of whether Clinton and his longtime friend Vernon E. Jordan Jr. encouraged her to conceal the truth of her relationship when questioned by Jones's lawyers.
Lewinsky denied an affair with Clinton in an affidavit she gave Jones's lawyers but told Tripp about it on the tapes and said Clinton wanted her to lie about it under oath, according to sources familiar with the tapes. Clinton, in his own deposition in the Jones case, denied having a sexual relationship with Lewinsky or urging her to lie about it.
The appeals court decision clears the way for Starr to proceed in three possible ways: He can try again to reach an agreement to gain Lewinsky's grand jury testimony voluntarily; he can compel her testimony by having a judge grant her limited immunity for the matters she is questioned about; or he can seek to indict her for perjury or subornation of perjury in connection with the now-dismissed Jones suit.
Legal experts said yesterday there is virtually no chance Lewinsky would succeed in convincing the Supreme Court to hear an appeal of the appeals court's ruling. Even if she were to seek Supreme Court review, Starr can proceed in the interim, they said.
The appeals court judges, ruling unanimously, said in a two-page opinion that appeals courts have jurisdiction in criminal cases upon "final decisions" of lower courts.
Lewinsky, they noted, "has not been indicted, let alone tried and convicted. [She] has not refused to testify before the grand jury, and for that refusal, been held in contempt of court . . . If appellant is ultimately indicted and convicted, and if it turns out that contrary to the district court's ruling, appellant had immunity from such prosecution, then dismissal of the indictment is the proper sanction," the judges said.
The panel said that the Supreme Court "has held specifically that an individual's claimed 'right' not to be indicted because of an immunity deal" does not mean that the person can get a hearing on that issue before a final judgment in court.
Besides Lewinsky, two other key figures have not given any testimony: Clinton, who has so far not indicated any willingness to provide it; and Tripp, who in January turned over to Starr more than 20 hours of tape recordings of her conversations with Lewinsky. A source close to Tripp said yesterday that she now does not expect to be called to testify until mid-June or later.
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