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White House Defense to Stress Conflicts

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  • By John F. Harris and Peter Baker
    Washington Post Staff Writer
    Monday, January 18, 1999; Page A1

    President Clinton's legal team on Tuesday plans to lay out a defense that will plunge into the conflict-laden factual record about the president's relationship with Monica S. Lewinsky and the statements he made under oath about it a shift from a previous strategy that emphasized that none of the charges against Clinton merited removal from office, even if true.

    The fact-driven case that White House lawyers are compiling, Clinton aides said yesterday, will afford ample opportunities to rebut and undermine the case that House Republican prosecutors presented to the Senate last week. The risk, some Clinton advisers acknowledge, is that putting the emphasis on Clinton's technical innocence not merely on the constitutional standards for removing a president may make it harder to argue that senators can reach judgment without hearing live testimony from witnesses.

    As a practical matter, some senior Clinton advisers have concluded privately that the case against calling witnesses is all but lost. The question of calling witnesses will be determined by a majority vote in the 100-member Senate, and momentum has grown in recent days among the GOP majority for calling witnesses. White House officials said they believed all but a handful of Democratic senators will vote against witnesses.

    As White House strategists see it, the critical concern is that the public puts the blame squarely on Republicans for the weeks or even months of delay in ending the trial if it goes into a witness phase. "Delay is unpopular," said one White House official. "It's an enormous political price they will pay."

    Even so, the witness question will challenge Clinton's side to make a carefully nuanced argument. His lawyers will say on the Senate floor both that witnesses should not be called and that it will only help Clinton's case if they are.

    Sources close to Clinton's defense team said lawyers will draw attention to facts in the voluminous record compiled by independent counsel Kenneth W. Starr that are favorable to Clinton. But, where there are conflicts in that record, they will argue that they can be resolved without senators hearing directly from the principals.

    Senators will be told that the evidence they already know was compiled to be most damaging to Clinton and that they can assume that further testimony would only help Clinton.

    "The idea that somehow the Republican prosecutors are going to elicit testimony that would be harmful to the president, that somehow Starr and his gang did not because they were too timid or too unthorough is preposterous," said one Clinton aide familiar with defense planning. Since the fall, Clinton's defense has had two essential arguments. The first is that he is not guilty of either obstruction of justice in his efforts to prevent Lewinsky from testifying truthfully about their sexual relationship in the Paula Jones sexual harassment case or of perjury in his later grand jury testimony. The second is that these crimes do not meet the constitutional standard for removal even if Clinton were guilty.

    In the House debate over impeachment, lawyers put the emphasis predominantly on the second argument; this week, while keeping the standards argument as a key element in the case, one adviser said, "We're going to have a role reversal."

    Clinton aides said yesterday they expected that White House counsel Charles F.C. Ruff would lay out the case with a broad presentation Tuesday. House Republicans used just over half of the 24 hours allotted to them under Senate rules to make their case last week, and White House officials said Clinton's defense will probably not use its full allotment either.

    White House lawyers, officials said, think that the House managers irritated senators by being repetitive and they are trying to avoid that. They also plan to play to senatorial pride by pointing out alleged inaccuracies in the House case and to accuse members of the lower chamber of Congress of deliberately misleading the upper chamber.

    At one point, aides debated offering an abbreviated presentation on Tuesday, so that the trial did not distract from Clinton's State of the Union speech in the evening. But Clinton's side now plans to make an extended presentation.

    "It will be both a big-picture look at the evidence and then a detailed, point-by-point rebuttal of the House case," said one White House adviser familiar with the planning.

    On the obstruction of justice charge, advisers predicted, Clinton's lawyers will hit hard on Lewinsky's grand jury testimony that neither Clinton nor others ever instructed her to lie. One aide predicted lawyers would ridicule the notion that job assistance was enlisted for Lewinsky to ensure her silence. Surely a president of the United States could have easily procured a job for someone if he wanted, but no high-level position was ever found for Lewinsky, according to this argument. While presidential confidant Vernon E. Jordan Jr. did try to help Lewinsky find a private-sector job commensurate with her experience, lawyers will say that there is no evidence this was done as part of a cover-up.

    "Everybody who is part of the so-called obstruction denies there was any effort to convince her to deny, to cooperate or to lie by getting her a job," said one White House adviser. "Vernon Jordan denies that. Monica Lewinsky denies that."

    Lawyers will also accuse the House managers of improperly jumbling statements Clinton made in his Jones deposition with his grand jury testimony. While Clinton has said that his Jones testimony was accurate but misleading, White House lawyers will say he was direct and truthful in the grand jury on the impropriety of his relationship with Lewinsky that he was alone with her, and that he hoped to keep an embarrassing affair secret.

    White House lawyers, sources said, will argue that there are very few conflicts in facts, mostly conflicts over interpretations of them in the record. As they analyze it, there are just three major fact conflicts of consequence: when did Clinton's relationship with Lewinsky begin? (she says November 1995; he says not until February 1996); what did they do when they were together? (she says he touched her in ways that would qualify as sex under a definition used in the Jones deposition; he says he didn't); and who initiated the retrieval of gifts Clinton gave Lewinsky (she says presidential secretary Betty Currie did, presumably at the president's instruction; Currie testified to the grand jury that Lewinsky called her).

    White House lawyers yesterday pounced on a statement made by one of the House managers, Rep. Asa Hutchinson (R-Ark.), on NBC's "Meet the Press." Hutchinson, a former federal prosector, was asked whether he would be confident of a conviction if he were trying Clinton in a criminal court for obstruction.

    "No, I would not," Hutchinson responded. "It is a lot of circumstantial evidence there. Some direct testimony. A lot of documentary evidence."

    Hutchinson said the ambiguity in the evidence is all the more reason that witnesses should be called. But White House spokesman James Kennedy said Hutchinson had highlighted one of the "significant holes" in the GOP case holes he vowed would be opened wider during the Clinton presentation this week.

    © Copyright 1999 The Washington Post Company

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