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President Clinton on Aug. 17, after his videotaped testimony and before his televised address. (AP)
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Kendall's Skill Doubted in Videotape Haggling

By Ruth Marcus
Washington Post Staff Writer
Friday, September 18, 1998; Page A19

As the House Judiciary Committee moves closer to releasing the videotape of President Clinton's grand jury testimony, the finger-pointing has begun.

Clinton's private lawyer David E. Kendall yesterday insisted it was not his miscalculation, but independent counsel Kenneth W. Starr's ill will, that led to the president's latest predicament: the prospect of four hours of television in which he appears angry, evasive and uncertain at times.

But Starr fired back in a statement yesterday that it amounted to a bad bargain. Legal experts and even some political strategists close to the White House weighed in, too: They were incredulous that Clinton's legal team made the risky decision to agree to the videotaping, especially with impeachment proceedings looming.

In an unusual public statement, Kendall asserted that Starr insisted on videotaping so the testimony could be seen by any grand jurors not present at the courthouse Aug. 17 to watch it on closed-circuit television. Starr, Kendall said, refused an entreaty to destroy the tape after that.

"The only purpose of preserving this videotape after any absent grand jurors viewed it was to ensure its public release and embarrass the president," Kendall asserted.

Starr retorted that Kendall originally agreed to the videotaping but, three days before the testimony was to take place, "began trying to backtrack" and asked that the tape be destroyed. "Consistent with our legal and ethical obligations, we cannot and will not destroy evidence of a crime," Starr said in his statement.

As the two legal teams tangled, outside lawyers focused on the apparent strategic miscalculation by Kendall. Release of the tape, they argued, was eminently foreseeable. Rather than risking that, these lawyers said, Clinton would have been far better off either having the grand jurors to the White House or, if necessary, taking the unprecedented step of testifying in person at the federal courthouse.

"It's a time bomb, and I can't understand why the lawyers agreed to let it be created," said St. John's University law professor John Q. Barrett. "You can't know what the bargaining was but it seems like a fairly dangerous thing to have agreed to and I don't see why it was more attractive than doing it live."

In their negotiations, Kendall did secure what Starr yesterday described as "remarkably unorthodox conditions" for Clinton. The subpoena was withdrawn, the questioning took place at the White House, a time limit was imposed and the president's private and White House lawyers were allowed to attend the session. Normally, lawyers cannot accompany their clients inside the grand jury room.

Kendall said last night that he bargained unsuccessfully to win an agreement for Starr to give advance notice to Clinton and an opportunity to object in court before turning over the tape to Congress. He said he also raised the subject of destroying the videotape upon receiving information that it might be needed for absent grand jurors.

Still, some legal experts said the risk Kendall took was considerable.

"This testimony was not going to prove life-enhancing for the president," said Columbia University law professor Gerard Lynch. Testimony "preserved on a transcript is less raw, would be seen, absorbed, understood by fewer people, and would have less impact" than videotape.

Political strategists close to the White House agreed. Indeed, some White House aides at the time cautioned against allowing the taping, although -- with the lawyers then firmly in control -- there was no intense internal debate.

"This was totally impervious to political considerations," said one White House adviser. "Had any of us been asked, well, what do you think the chances are of the videotape being seen by the American people at some point, we would have estimated between 90 and 100 percent."

Now, said one former White House lawyer, "It's a gigantic problem. All of this so far has been a paper battle. Monica has not spoken publicly. The president has not answered any questions publicly about the facts, and all of a sudden the first public testimony about the facts in this case is going to come from him in what under any circumstances would be a very difficult environment."

Despite Kendall's assertion that Starr refused to back down from his insistence on videotaping, some outside observers suggested that Kendall could have balked, perhaps by threatening litigation over Starr's authority to subpoena a sitting president. "It seems to me that Kendall had a lot of leverage on this negotiation," the former White House lawyer said.

Before his August grand jury testimony, Clinton had given videotaped testimony three times earlier, once in his January deposition in the Paula Jones sexual harassment lawsuit and twice in Whitewater-related criminal cases. In three other instances he answered questions from Whitewater prosecutors in sessions that were not videotaped.

Mark Fabiani, a former White House special counsel, said that before the videotaped Whitewater testimony, officials wrestled with the risk of videotaping. "Those were charged debates because the real fear was that in the middle of a presidential campaign you would have videotapes become available and used in campaign commercials," he said. "David and other lawyers argued successfully that we're dealing with federal judges who are going to treat his testimony the same as the testimony of any other witness" in federal court and prevent it from being broadcast.

But in the case of Clinton's latest testimony, the fact that Starr was widely expected to send an impeachment report to Capitol Hill meant that the ultimate arbiter of its release would not be a federal judge but the Republican-controlled House of Representatives.

At the time Clinton agreed to provide the grand jury testimony, White House officials were adamant that he would never agree to go to the courthouse in person, arguing that it would infringe on the dignity of his office and allow Starr to embarrass the president with footage of him entering the courthouse.

Some outside observers agreed with that assessment yesterday. "It's not presidential to go before the grand jury," said George Washington University law professor Stephen Saltzburg. "It was sort of grating to see them drag the first lady down there. . . . The notion of a president going down to be dragged before a special prosecutor is unseemly."

But others said Clinton should have adopted the "head held high" strategy taken by Hillary Rodham Clinton when Starr insisted that she appear in person. At the time, she chose to make a public entrance and appear in front of cameras both before and after her testimony.

"My advice starting in January was if he was ever subpoenaed, pull his car up to the curb, walk into the grand jury and look them right in the eye," said one White House adviser. "Going on tape -- it just stunned me that they agreed to it."

© Copyright 1998 The Washington Post Company

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