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With Witnesses, Risk Before Any Rewards

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  • By Ruth Marcus
    Washington Post Staff Writer
    Friday, January 8, 1999; Page A1

    The House prosecutors have launched an all-out battle for the right to call witnesses against President Clinton but their trial strategy – while perhaps the only long-shot avenue to assemble a two-thirds Senate vote to convict the president – also presents risks to their side.

    In a dispute that has snarled the Senate for days, the 13 House managers appointed to prosecute the trial of the president insist they must call key players to the stand to prove their charges that Clinton perjured himself and obstructed justice, while Democrats and the White House say that would achieve nothing but needlessly prolonging the proceedings and, not incidentally, hurting Clinton politically in a case that involves salacious sexual details.

    "What this has been about for some members of Congress from the beginning is trying to inflict damage on the president, and I think that probably is at the root of this decision," White House press secretary Joe Lockhart said yesterday. House Judiciary Committee chief Democratic counsel Julian Epstein called the move "a political calculation by the right wing to further tarnish a popular president."

    But House managers and some legal experts say it would be irresponsible and not consistent with the constitutional mandate that the Senate conduct an impeachment trial to proceed without hearing directly from those involved, including such central players as Monica S. Lewinsky, Vernon E. Jordan Jr. and Betty Currie. Witnesses are "what humanizes this case," said Rep. Asa Hutchinson (R-Ark.) "That's what puts meat on the bones."

    The argument represents a reversal of the partisan positions staked out last year as the House conducted its impeachment proceedings. Then, House Judiciary Committee Democrats protested bitterly that it was irresponsible to approve articles of impeachment against the president without hearing directly from the witnesses against him while Republicans said there was no need to retake testimony already gathered by independent counsel Kenneth W. Starr.

    Now, the House managers say, the time has come to hear from the witnesses themselves rather than simply read transcripts of their grand jury appearances and FBI interviews. "This is not like the House," said Rep. Chris Cannon (R-Utah). "We ought to be able to present the evidence and the president ought to be able to cross-examine because these are serious allegations."

    A Way to Turn the Tide?

    Facing an uphill battle to secure a conviction, the prosecutors in one sense have little to lose by mounting a full case against Clinton.

    "Let's face it, right now the Republicans feel they're behind in terms of the votes. This is a chance to turn things around," said Alan I. Baron, who helped prosecute the two most recent impeachment cases, against judges Alcee L. Hastings and Walter L. Nixon Jr..

    Terence J. Anderson, who represented Hastings during his 1988 impeachment, said that if he were a House manager, "I would want this to go on as long as possible. If it goes on long enough, maybe Clinton will stumble, maybe the economy will drift, maybe something will blow up. . . . You keep going until you have your best shot to have the votes."

    Said Robert J. Giuffra Jr., former chief counsel to the Senate Whitewater Committee, "The argument for calling witnesses is that if you don't call witnesses the result of the impeachment trial is preordained: There will be no removal of the president. The only way that dynamic could change is if witnesses could testify and that somehow changed the mind of senators."

    Hazards on the Stand

    At the same time, however, summoning witnesses is risky business, both legally and politically.

    "Calling witnesses will pour kerosene on an already burning fire and who will get burned by the explosion that ensues is anyone's guess," Giuffra said. "It could lead to the president's removal from office or resignation or it could lead to a strong rebuke for the Republicans in 2000. Because once you start calling witnesses the dynamic of this whole matter will change completely."

    The danger of calling witnesses is magnified by the lineup in this particular case, in which the critical witnesses who would be called by prosecutors to try to prove their case against Clinton are highly sympathetic to the accused.

    At the top of that list are Clinton confidant Jordan and presidential secretary Currie, who would be central to proving the allegation that Clinton obstructed justice by arranging to obtain a job for Lewinsky and having her hide presents she received from him when they were subpoenaed in the Paula Jones civil suit.

    'A Prosecutor's Nightmare'

    Other possible witnesses in the House's obstruction-of-justice case include a parade of the president's senior advisers to whom he allegedly lied and thereby obstructed justice, knowing they would repeat his false statements to the grand jury.

    "This is a prosecutor's nightmare," said Columbia University law professor Gerard E. Lynch. "You put on the witness who is more a friend of the other side."

    Indeed, since Jordan and Currie, like the other witnesses, have not yet been subjected to cross-examination, much of what prosecutors were able to obtain from those reluctant participants in the grand jury could be undermined once Clinton's lawyers get the chance to question witnesses friendly to their client.

    The testimony already on the record is "as good as it gets from the managers' point of view and it ain't gonna get better," Baron said. "Once the witnesses are subject to cross-examination, given the fact that they are inherently not hostile to the president, whatever the managers think they have at this point could very well be eroded to the point where there's nothing left."

    Rep. Charles T. Canady (R-Fla.) said the managers were cognizant of that risk. "It's true, I think, that all of the witnesses are sympathetic to the president," he said. However, he said, "I believe they'll understand that they've got to testify truthfully even though they don't want to do anything to hurt the president."

    The Lewinsky 'Wild Card'

    Another "absolute wild card," as Lynch put it, is Lewinsky, who took pains at the conclusion of her grand jury testimony to emphasize that no one had ever asked her to lie under oath or helped her get a job in exchange for silence – exactly what the House obstruction article alleges.

    "If Monica Lewinsky comes off as a very sympathetic witness who has been manipulated by the president, that will not be favorable for the president," Giuffra said. "On the other hand, if she appears to be a calculating, cunning person, that could backfire on the Republicans."

    While Lewinsky may not be as close to Clinton's camp as Jordan and Currie, she agrees with their bottom-line assertions that they did not participate in an effort to obstruct justice in the Jones lawsuit. That means that prosecutors are left to make their case with three witnesses who don't agree with their premises.

    As Lynch summarized the case, "You haven't got a victim who's coming on to say, 'This guy did a terrible thing to me.' You haven't got a bystander witness who's going to say, 'What terrible things I saw.' You haven't got a cooperator who flipped. You've got a collection of people who by and large are not on your side."

    Staff writer Juliet Eilperin contributed to this report.

    © Copyright 1999 The Washington Post Company

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