Starr Team Cleared of Blocking Call
Washington Post Staff Writer
Saturday, December 5, 1998; Page A1
Independent counsel Kenneth W. Starr's prosecutors did not improperly prevent Monica S. Lewinsky from calling her lawyer when they first confronted her last January, a federal judge ruled in a newly unsealed decision, while questioning their conduct in talking to Lewinsky about an immunity deal without a lawyer present.
The April 28 ruling by Chief U.S. District Judge Norma Holloway Johnson cleared Starr's office of several misconduct allegations that the White House and congressional Democrats have promoted as part of their attack on Starr's tactics. Prosecutors were not required to allow Lewinsky to have a lawyer present during the Pentagon City sting, Johnson determined. "A right Ms. Lewinsky did not possess could not have been violated," the judge wrote.
The way in which Lewinsky was treated on Jan. 16 has been a political controversy throughout the Starr inquiry. Democratic criticism escalated with the release of grand jury testimony in September in which Lewinsky complained she felt threatened and said she was discouraged from calling her lawyer at the time, Francis D. Carter. Only after 11 hours with Starr's prosecutors did Lewinsky consult a lawyer, family friend William H. Ginsburg.
But Johnson faulted Starr's prosecutors for their handling of another matter on Jan. 16: the discussion of immunity. Saying that it could be a violation of Justice Department policy, Johnson wrote, "The court expresses its concern that the office of independent counsel may have acted improperly in conducting immunity negotiations with Ms. Lewinsky without the presence of her counsel, but declines to take further action on this particular matter."
Earlier this week, the White House asked for the court documents in order to prepare a public defense next week before the House Judiciary Committee. Yesterday, Clinton's lawyers told the panel they want a hearing of their own devoted to Starr's alleged misconduct.
And despite Johnson's clearing of prosecutors on the charge they held Lewinsky without allowing her to talk to Carter, White House officials yesterday emphasized the judge's criticism about the immunity talks. "I think there is a mixed result in there," said White House spokesman Joe Lockhart. "There is certainly evidence in there that [Department of Justice] practices and standards were not followed," he said. Johnson said prosecutors were under no obligation to allow Lewinsky to call Carter, since she was not being charged or held against her will by the lawyers and FBI agents who accosted her at the Pentagon City Ritz-Carlton Hotel. "Even if this conduct had occurred, it did not violate Ms. Lewinsky's Sixth Amendment right to counsel, because that right had not attached at the time of the interview," Johnson wrote.
Lewinsky provided an affidavit about the events of that day. "I was informed that I could contact any other attorney, but I could not contact Mr. Carter," she said.
But prosecutors Michael Emmick and Bruce Udolf disputed that claim in their own statements, as did two FBI agents present in hotel room. They said Lewinsky was repeatedly told she was free to leave and free to contact Carter if she wished, although they told her she would lose some leverage to make a deal if she did. Hotel records show an FBI agent called Carter's office shortly after 5 p.m. that day to find out where Lewinsky could reach the lawyer if she decided she wanted to do so.
At that stage of the investigation, the Starr team did not know whether Carter had knowingly helped Lewinsky prepare a false affidavit in the Paula Jones lawsuit, in which she denied a sexual relationship with Clinton. They said they feared Carter might inform Clinton friend, Vernon E. Jordan Jr., who had brought Lewinsky to Carter. Eventually Starr's team determined Carter did not know Lewinsky was providing false information.
On Jan. 16, two hours into their interview, according to Emmick, Lewinsky said: "What if I want to call my attorney?" Emmick said he told her she was free to do so but said, "I recommended that she finish hearing us out before making any decisions."
Lewinsky testified to the grand jury that she felt intimidated and unsure of whether she'd be arrested if she tried to leave. She complained that when she said she wanted to call her mother, prosecutor Jackie M. Bennett discouraged her, saying, "You're 24, you're smart, you're old enough, you don't need to call your mommy."
Judiciary Committee Democrats said despite the rulings they continue to believe Starr mistreated Lewinsky. "A phone call was made to Frank Carter's office after hours . . . why did they wait?" said Lis Wiehl, a lawyer for committee Democrats. "She was being threatened without being charged."
The judge also determined the independent counsel did not violate ethical rules in having a secretly wired Linda R. Tripp, who was acting as a government agent, question Lewinsky over lunch Jan. 13 about her relationship with Clinton.
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