By Joan Biskupic
It takes one to know one. Which may explain why several lawyers, asked yesterday to analyze the "talking points" document that former White House intern Monica S. Lewinsky supposedly gave to her colleague, Linda R. Tripp, concluded that the document may have a lawyer's hand behind it.
The three-page document is unlikely to actually have been written by a lawyer, according to several legal experts. Rather, some raised the possibility that Lewinsky may have spoken with a lawyer and then drafted the document herself based on those conversations.
The result is a strange mixture of the legal and colloquial that encourages Tripp to retract prior public statements she had made and possibly distort the truth. It is illegal for lawyers to encourage witnesses to lie, and it is unlikely, the legal specialists said, that any lawyer would have put such suggestions in writing -- if he or she would have made them at all.
Still, the document, a copy of which was obtained by The Washington Post, provides a step-by-step guide that Tripp has claimed she was being asked to follow when she testified in the Paula Jones sexual misconduct case against the president.
The "talking points" could become a key piece of evidence if independent counsel Kenneth W. Starr tries to indict Lewinsky or anyone else on charges of obstructing justice. Starr is investigating whether Lewinsky or anyone on President Clinton's legal team urged Tripp to lie, or whether Lewinsky herself has been pressured to disguise the true nature of her relationship with Clinton.
At one point in the document, Lewinsky appears to suggest how Tripp can change earlier accounts she has told a reporter regarding Kathleen E. Willey, a White House aide whom Tripp had asserted she saw leaving the Oval Office with her blouse untucked and lipstick smeared after an encounter with Clinton. In the "points to make in affidavit," Tripp is encouraged not to "contradict" Clinton's version of events and to say that "you now do not believe that what she claimed happened really happened. You now find it completely plausible that she herself smeared her lipstick, untucked her blouse, etc."
Toward the end of the document, it says, "[Y]ou want to provide an affidavit laying out all of the facts in lieu of a deposition. You want Bennett's people to see your affidavit before it's signed." That apparently is a reference to Clinton's lawyer, Robert S. Bennett. Neither Bennett nor Lewinsky's lawyers would comment on the "talking points."
Kathleen Clark, a professor of legal ethics at Washington University in St. Louis, said yesterday, "This document raises the question of how much of our legal process is about getting to the truth and how much of it is about shaping what will be called the truth at trial."
Acknowledging that she knew nothing about the origin of the document, Clark said the sentiment behind the document seemed traceable to lawyers. She pointed to the detailed and well-developed story line that could help Tripp explain why she came to suspect Willey and consequently change her own version of events.
Some lawyers interviewed yesterday found it difficult to believe that Lewinsky, a 24-year-old without legal experience, could have drafted what appears to be a map for navigating a difficult legal proceeding. The document advises, "Your deposition should include enough information to satisfy their questioning."
Such remarks, some lawyers said, reflect more a tone of legal strategizing than talk between two friends. Besides, one noted, why does Monica Lewinsky have a personal interest in changing the story relating to Kathleen Willey?
But the document is a strange blend of savvy and silly. Halfway through, the point of view changes, as if the first part is Lewinsky's dictates to Tripp and the second part is Tripp talking to herself, on the same issues.
At one point it appears that Tripp is being urged to say that Lewinsky "turned out to be this huge liar . . . [who] left the WH because she was stalking the P or something like that." That's not exactly lawyerly language, but the description nonetheless mirrors the account some White House aides have offered in explaining why Lewinsky was transferred from the White House to the Pentagon.
John McCormick, who specializes in white-collar criminal work in the District, said he doubts a lawyer would be foolish enough to actually put such comments in writing. The language, he said, "suggests someone is asking a witness to change an account or shape a recollection. That could expose the client and potentially the lawyer to more legal problems down the road."
While lawyers commonly coach witnesses, there is a line between guiding a witness to present events in the best light to a client and urging someone to misstate the truth, which is unethical and illegal.
University of Chicago criminal law professor Stephen Schulhofer said: "It's very routine for lawyers to go over testimony with witnesses. It would be malpractice not to do it. And it works from both sides; prosecutors, too, do this all the time. . . . But you always want your witness to tell the truth."
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