By Susan Schmidt and Peter Baker
Sources close to the administration said they believed Starr has indicated to Clinton attorney David E. Kendall that he was on the verge of issuing a subpoena to compel the president to answer questions about his relationship with Lewinsky, prompting a new round of talks intended to head off such a historic showdown.
If Clinton were to provide testimony, it would represent another turnabout on the issue by the president. Early in the Lewinsky probe, Clinton said he believed people may have legitimate questions about his relationship with Lewinsky, and that he was anxious to provide answers, "more rather than less, sooner rather than later." But over the past few months, Clinton has resisted testifying and, until now, advisers privately had been saying they saw no reason for him to answer Starr's questions.
Starr has invited Clinton to give his account voluntarily several times over the course of the investigation, but has been rebuffed by Kendall. In the past, Clinton has provided sworn testimony in the long-running Whitewater investigation, including interviews videotaped at the White House and later played at the bank fraud trial of his former business partners.
"As has been true on every previous occasion, Mr. Kendall will work with Mr. Starr's office to try to ensure that the grand jury gets the information it needs," McCurry said, reading a statement drafted after White House counsel Charles F.C. Ruff called Kendall yesterday morning for guidance on how to respond to a flurry of inquiries.
While the White House offered no elaboration, the carefully crafted statement appeared to be a signal that it wants to de-escalate the confrontational talk lately by Clinton allies of a constitutional battle with Starr over his power to subpoena the president.
By emphasizing cooperation, the White House seemed to suggest a new willingness by Clinton to testify as long as acceptable conditions are worked out. Clinton and his lawyers are adamant about avoiding the spectacle of the president being forced to travel down to the courthouse to appear in person before the grand jury, an act he and his staff consider demeaning to the office and a dangerous precedent for future chief executives. Hillary Rodham Clinton once was forced to testify on Whitewater before a grand jury at the courthouse, an indignity in the minds of the president and his aides, who still fume about it.
Starr's office cited grand jury secrecy rules yesterday in refusing to comment on whether it had prepared a subpoena for Clinton's testimony. White House officials were only slightly less guarded in what they were willing to say publicly about the subpoena question.
McCurry said White House lawyers would not tell him whether the president had received a subpoena, and added that the White House had no obligation to tell the nation. "Grand jury proceedings are held in secret," he told reporters. "They are held in secret in this country because the rights of individual citizens in this country are protected. We presume innocence. You may not, but that's the way our system of law works."
John Bates, Starr's former deputy, now in private practice, said, "The timing would seem right for a subpoena or serious discussions about obtaining the president's testimony."
"Starr appears near the end of the fact-gathering phase of the investigation, and that makes it more important," he said. "He has an obligation to make every effort to obtain all the relevant evidence, whatever it may be and whoever it may come from, and whether it be exculpatory or inculpatory."
Lanny J. Davis, a former White House lawyer who remains an informal adviser to the president, said the decision to negotiate with Starr is an indication that the president believes his testimony will not be contradicted by whatever Lewinsky, who has not testified, may ultimately say.
"To me, if [White House lawyers] decide to have the president testify, it demonstrates a much higher level of confidence, both on the merits and politically," said Davis.
"Clearly it is in the president's interest to avoid a constitutional confrontation if a subpoena is issued," Davis said. "I assume that his legal advisers will prefer a venue at the White House or an attorney's office rather than the grand jury hearing room."
Starr's efforts to obtain testimony from Clinton have provoked a debate about whether the Constitution permits a sitting president to be subpoenaed. Starr's advisers have said unequivocally that it does, citing court cases involving President Richard M. Nixon during Watergate and Clinton during the Paula Jones case.Lawyers allied with Clinton, including most prominently his former White House counsel, Jack Quinn, have argued that Starr does not have the power to compel testimony from the president because of the separation of powers built into the Constitution.
If Clinton refuses to testify, his advisers would prefer to challenge Starr's authority on constitutional grounds rather than have the president take the politically explosive path of invoking his Fifth Amendment right against self-incrimination.
Either way, however, not testifying could carry a political risk. While polls have shown that the public is tired of the Starr investigation, 64 percent in a recent Fox poll said Clinton should testify.
Other Democrats have urged Clinton to tell his story. "I would hope that he would," House Minority Leader Richard A. Gephardt (D-Mo.) said in an interview taped for broadcast on CNN today. "I think that he would. He has supplied more information than any president than at any time in our history. He's been more investigated than probably all the presidents put together in the history of the country."
There was no immediate prospect of testimony being taken, though, since Clinton leaves this morning for a three-day trip out West and Kendall is in Canada for the weekend.
The testimony issue erupted at the end of an intensive week of grand jury activity, including questioning of Secret Service personnel about Lewinsky's visits to the White House. One source familiar with some of the Secret Service testimony said Starr's prosecutors have focused on Lewinsky's visits to the Oval Office and the circumstances of her 1996 transfer from the White House to a job at the Pentagon.
The source said prosecutors are quizzing officers about whether they saw Lewinsky on the three dozen occasions that entry logs show she was admitted to the White House complex after leaving her job there. Prosecutors have shown particular interest in two Lewinsky visits to the Oval Office in December.
Staff writer Lloyd Grove contributed to this report.
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