By Michael Grunwald
But there was something else that Lewinsky said she wanted on Jan. 16, after FBI agents surprised her on her way to lunch with Linda R. Tripp and whisked her to the Ritz-Carlton Hotel to talk with prosecutors about cooperating with their investigation of President Clinton. She said she wanted to call her lawyer, Francis D. Carter. And on that request, Starr's office was not so accommodating.
With Monday's release of Lewinsky's emotional grand jury testimony as well as Starr's records of the 12-hour meeting at the Ritz, the independent counsel's critics are pointing to the meeting as a stark example at least of overzealousness, if not prosecutorial misconduct.
Lewinsky testified last month that after she said she would not talk without a lawyer, Starr's aides warned her that she could face 27 years in prison on charges of perjury, obstruction of justice and witness tampering on the Paula Jones case.
She also testified that they told her she would lose her chance for an immunity deal on those potential charges if she called Carter, that they threatened to prosecute her mother, that they even discouraged her from calling her mother. "You're 24, you're smart, you're old enough," said Starr deputy Jackie M. Bennett Jr., according to Lewinsky's grand jury testimony. "You don't need to call your mommy."
Starr has denied that Lewinsky was mistreated, and some legal experts say his underlings' efforts to dissuade her from calling her attorney were perfectly legitimate. Months later, when her attorney went to court to try to enforce what he said was a subsequent deal with Starr -- and buttressed his case with allegations prosecutors had mistreated her in that first meeting -- a federal judge rejected the complaint.
But even though no court has ruled the prosecutors' tactics legally unsound -- and Lewinsky is now cooperating with the Starr investigation -- she was clearly traumatized by her grueling confrontation in Room 1012. When one of the grand jurors asked her about the Jan. 16 encounter, she would not discuss it until Emmick left the room.
Even Starr's records make clear that his aides played hardball at the Ritz, informing Lewinsky that she was the subject of a criminal investigation, then advising her that "the offer to discuss her legal status was not being offered to her attorney, but to Lewinsky alone." But some experts said that Starr was well within his rights to impose whatever conditions he wanted on the discussions, as long as Lewinsky was free to go and free to say no. They said there may be a right to counsel, but not to an immunity deal.
"It's utterly outrageous," said Neal Sonnett, a Miami defense lawyer who once ran the criminal division of the U.S. attorney's office in South Florida. "You can't take a young woman who is obviously frightened to death and discourage her from seeking counsel. There's no question about it: This was prosecutorial misconduct."
It was fair play, countered others. "She was a grownup, and she wasn't in custody. That's the way the game is played," said Akhil Amar, a Yale Law School professor of constitutional law and criminal procedure. "I'm sure criminal defense attorneys don't like it, but the fact is, prosecutors want to get at the truth, so they try to discourage witnesses from calling their lawyers."
During her testimony on Aug. 20, Lewinsky told the grand jury that the first thing she told the FBI agents was that she wouldn't talk without an attorney. She said she only agreed to go with them because they told her "that was fine, but I should know I won't be given as much information and won't be able to help myself as much with my attorney there." She also testified that she was told not to call Carter because he might tip off his friend Vernon Jordan about the still-secret investigation, and that someone told her that Carter wouldn't be able to help much anyway because he is not a criminal attorney. She said Starr's aides did give her a number for another attorney to call, but she refused because she did not trust them.
Still, Lewinsky admitted in her testimony that she was repeatedly told she was under no obligation to stay with Starr's deputies on Jan. 16. They did read Lewinsky her rights. At one point, they let her leave the room alone to make a phone call. She eventually did call her mother, Marcia Lewis, who promptly boarded a train to Washington, and she eventually did talk to a new attorney, William H. Ginsburg. She ate dinner with Emmick and an FBI agent in the mall. She went to the bathroom at Macy's. She withdrew money from an ATM. At 12:30 a.m., according to Starr's log, she thanked the agents and prosecutors "for being so kind and considerate." It was another six months before she agreed to cooperate with Starr's office.
Several legal analysts said the Supreme Court has given prosecutors a lot of leeway in questioning witnesses who are not in custody. They can set traps, warn about the consequences, even lie.
But in her grand jury testimony, Lewinsky claimed that she felt threatened in the hotel room crowded with prosecutors and FBI agents, and thought she would be arrested if she tried to leave. At one point, she said, she sat in the room sobbing for two hours. At 2:29 p.m., according to Starr's log, she said that "if I leave now, you will charge me now"; at 2:50 p.m., she suggested taking a taxi to her attorney's office. The prosecutors' responses are not recorded.
By now, all of America knows about Lewinsky's fragile emotional state; Lewis told Starr's deputies on Jan. 16 that she was "younger than her chronological age," and had talked about suicide six years earlier. Now some commentators are suggesting that the prosecutors may have taken Lewinsky into a kind of "psychological custody," and that they had an ethical obligation to back off when she said she wanted to talk to a lawyer.
"Just because they said she was free to go doesn't mean she really felt that way," said David Cole, a professor of constitutional law at Georgetown University. "This was a very heavy-handed interrogation. It raises some serious questions."
In a normal criminal case, those questions might prompt a defendant to try to strike evidence from the record. Of course, this is not a normal criminal case. The real impact of the marathon meeting at the Ritz could be political, shaping perceptions of Starr and his investigation. Some Democrats think it could turn public opinion even further against Starr.
It certainly seemed to annoy the jurors. They showed a keen interest in the events at the Ritz, asking Lewinsky whether she felt threatened, whether she felt she was actively discouraged from seeking an attorney, to which she answered yes. The first time the subject of Jan. 16 came up, Emmick seemed to try to change the subject. But the jury would have none of it. "We really want to know about that day," one said.
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