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Advisers Lean Against Clinton Testifying

By Peter Baker
Washington Post Staff Writer
Sunday, July 5, 1998; Page A04

In the weeks after the Monica S. Lewinsky investigation began, George Stephanopoulos cast a skeptical eye on his old boss at the White House, but one thing he was sure about was that President Clinton eventually would testify and tell his story.

"He knows he can't get away with that and not testify," the former presidential adviser turned television commentator said on ABC a couple weeks after the story broke last January. "He knows that he can't avoid testifying in this case because the political damage would be huge," Stephanopoulos added a month later.

But Clinton, it appears, knows nothing of the sort. Whatever faith he once placed in Stephanopoulos's judgment, the president apparently has calculated that he can avoid testifying without huge political damage -- and so far has. Clinton has rebuffed about a half-dozen invitations from independent counsel Kenneth W. Starr to explain his dealings with Lewinsky under oath, and with the president back from a nine-day trip to China that gave him a respite from the controversy, his advisers seem unified around a strategy of refusing to testify altogether.

Publicly, Clinton advisers maintain that no final decision has been made, but privately they have reached a consensus that the public will not erupt in anger if the president declines to talk with Starr and believe there is little to gain legally in volunteering testimony that could then be used against him.

"The decision is already made, but not set in concrete," said one Clinton ally who declined to be identified. "I can't think of a single reason for him to testify. . . . You don't need to convince your own people and there's not enough you could ever do to convince your doubters."

So far as is publicly known, Starr has simply asked rather than tried to compel the president to answer questions about whether he tried to cover up a sexual relationship with Lewinsky during the since-dismissed Paula Jones case. But with Linda R. Tripp telling her story to the grand jury and Lewinsky negotiating a deal to do the same, Clinton is virtually the only major witness left and a confrontation could be looming.

The standoff between Starr and Clinton raises thorny and unprecedented issues, both political and constitutional. How would the country react to a president of the United States refusing to testify, especially one who once promised to tell "more rather than less, sooner rather than later" about his ties to Lewinsky? Does Starr have the legal authority to subpoena a president who declines to cooperate? If he tried, how would the independent counsel enforce such a subpoena and what could he do if Clinton defied it?

Clinton has testified under oath several times during his presidency -- in a deposition in the Jones civil case and as a witness in Starr's Whitewater probe. But no president has been forced against his will to testify in a criminal investigation in which he was the central target.

For months, it was a given in Democratic circles that Clinton ultimately would cooperate. Stephanopoulos was not the only one who made that assumption. In May, for example, House Minority Leader Richard A. Gephardt (D-Mo.), asked during a television interview whether Clinton would testify, said, "I would think he would." (For the record, Stephanopoulos recently changed his mind, saying he believes Clinton may not testify.)

Public opinion polls are ambiguous. The White House takes heart from surveys showing public fatigue with the investigation, with most voters saying they do not believe Clinton should have to offer any more explanation of his ties with Lewinsky at this time. Yet a Fox News poll last month indicated that 57 percent of registered voters believe Starr should subpoena Clinton and 64 percent believe the president should testify.

"It gives the appearance of having something to hide" if he does not, said Mark J. Rozell, an American University political scientist who has written about the history of executive privilege. "I don't know how it plays politically and I don't see how it helps legally either. If the White House spin is that he's done nothing wrong and has nothing to hide, he should just go forward and testify."

But Democratic strategists have been laying the groundwork for justifying a refusal to testify on the grounds that Starr is nothing more than a partisan pursuing a witch hunt against the president.

"If Starr pressed the issue, there would be a greater political backlash against Starr than against Clinton if he turned down the request," said Democratic consultant Geoff Garin.

Alan Secrest, another consultant, agreed, saying the political atmosphere had changed since January. "I don't think I would've said that a few months ago and I still believe there's the potential for grave danger if a thread begins to unravel somewhere," Secrest said. "But the simple fact of him refusing to testify isn't enough, I don't think, to bring down political opprobrium."

Starr has given no public signal of how hard he is willing to push to secure Clinton's testimony. An aggressive approach could trigger another precedent-setting court fight about the limits of presidential power.

The White House would rather bank on constitutional principles than a Fifth Amendment invocation against self-incrimination because it would be less likely to suggest that Clinton was trying to hide something. Nothing in the Constitution directly addresses whether a president can be subpoenaed, but Clinton's advisers are banking on the theory that he cannot be because of the separation-of-powers doctrine.

Under this argument, as laid out publicly on several occasions by former White House counsel Jack Quinn, the Constitution envisions a president being subject to impeachment, rather than indictment, while in office. If a sitting president cannot be indicted, then he cannot be subpoenaed by a special prosecutor, Quinn has said, because he would not be subject to "the compulsory processes of the court," namely a contempt-of-court citation and possible imprisonment for defying a subpoena.

"Starr is an inferior officer -- he cannot arrest or . . . handcuff a president to enforce a subpoena," said Akhil Reed Amar, a Yale Law School professor who has written about what he calls the presidential privilege against prosecution. "The true grand jury of the United States when it comes to the president of the United States is the House of Representatives."

Congress, by contrast, has the ability to enforce subpoenas through the impeachment process. Indeed, during Watergate, the third article of impeachment drafted against President Richard M. Nixon was his refusal to comply with four subpoenas issued by the House seeking documents in its investigation.

But other scholars, including some advising Starr, take a sharply different view, citing Watergate battles in which Nixon also fought subpoenas from special prosecutors seeking Oval Office tapes, but eventually turned them over after losing in court, including the landmark Supreme Court decision on executive privilege.

"It's clear from U.S. v. Nixon that the president is not immune from having to testify about matters related to a criminal investigation and that puts the president in a very difficult position," said Gerard Lynch, a Columbia University law professor and former prosecutor during the Iran-contra investigation.

Ronald D. Rotunda, who worked as a lawyer for the Senate Watergate Committee, agreed and cited a more recent judicial precedent -- last year's unanimous Supreme Court decision rejecting Clinton's claim of immunity while in office and allowing the Jones civil case to go forward.

"It would be mind-boggling to think that the president would have to appear and give testimony in a civil case but would have some sort of immunity in a criminal case," said Rotunda, who teaches law at the University of Chicago and has served as a special consultant to Starr's office on these sorts of constitutional issues. "I don't see any special presidential privilege from subpoenas. There's absolutely no case law that supports it."

© Copyright 1998 The Washington Post Company

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