For Prosecutors, Tough Trade-Offs
Washington Post Staff Writer
Wednesday, January 27, 1999; Page A01
The House prosecution team yesterday proposed a puzzling trio of witnesses.
The list omits one key player who could testify about two of the obstruction-of-justice charges against President Clinton, secretary Betty Currie. And it includes another, White House aide Sidney Blumenthal, whose account is likely to be of only marginal importance to the senators determining the president's fate.
At the same time, the "managers" asked to call Monica S. Lewinsky, but -- for fear of spooking the Senate -- promised not to ask her anything about one of the central perjury allegations against Clinton: the "discrepancy," as White House lawyers delicately call it, between Lewinsky and the president as to the precise details of their sexual encounters.
Instead of seeking an appearance by Currie, who could provide compelling testimony about the two occasions on which she says Clinton bombarded her with a series of statements concerning his involvement with Lewinsky, the managers took the risk of asking for Vernon E. Jordan Jr.
The Washington superlawyer's testimony would "indubitably," as he is wont to say, be relevant to those determining whether efforts to secure a job for Lewinsky were linked to her filing of a false affidavit in the Paula Jones lawsuit. But the notion that the managers might be able to dislodge Jordan from his assertion that the two were unconnected is far-fetched at best -- a point made dramatically yesterday when Clinton's private lawyer, David E. Kendall, played a series of clips of Jordan's smooth-talking post-grand jury pronouncements from the courthouse steps.
To be sure, the managers found themselves in a tough legal and political bind.
They confronted tremendous pressure from Senate Republicans to craft a truncated witness list, and not to generate a lengthy and messy trial. "We were put in a procedural box," said Rep. James E. Rogan (R-Calif.). "We didn't want to run the risk of putting the three most controversial witnesses on the list and run the risk of getting none of them."
The managers also faced the difficult fact that all but one of the main witnesses work for Clinton or are on his team, and that the other, Lewinsky, is clearly in no rush to help those who want to oust him from office. "These are not going to be our friends if they come in and testify," Rep. Ed Bryant (R-Tenn.) told the Senate yesterday.
They also weighed tough trade-offs in deciding whom to cut. For example, Currie's account of how she came to retrieve subpoenaed gifts from Lewinsky -- she supports Clinton in saying that he did not ask her to get the gifts and recalls that it was Lewinsky who initiated the pickup -- hurts their case. But her testimony about the president's series of false statements to her after the Jones deposition is helpful to prosecutors.
And while a Currie defense of Clinton in the Senate trial clearly could be attacked as the supportive statements of a loyal secretary, hammering a sympathetic African American woman in the well of the Senate might not be the wisest political or legal strategy.
Blumenthal represents a trade-off of a different sort. His testimony about Clinton's statements after the Lewinsky story broke -- that she was a "stalker" who "came at me and made a sexual demand on me" -- portrays the president in a highly unflattering light. But it's a stretch to transform that self-serving story into obstruction of justice on the grounds that Clinton knew Blumenthal was likely to be called before the grand jury.
Senate Democrats yesterday seized on the choice of Blumenthal over Currie as an admission of weakness by the managers. "They're afraid to put her on the stand," said Sen. Richard J. Durbin (Ill.). "Blumenthal's role in this is so tangential."
Aside from the complications for their case, the managers also had to calibrate the list to appeal to senators in both parties wary of a trial with live testimony.
There are two groups of senators for whom voting against witnesses makes sense. First, those who do not believe that Clinton's actions, even if they amounted to the crimes of perjury or obstruction of justice, constitute grounds for his removal. Second, those who do not believe that -- based on the available universe of facts and witnesses -- they could ever be satisfied beyond a reasonable doubt that Clinton committed those crimes.
But for senators inclined to convict Clinton or wavering on whether they think the facts add up to perjury or obstruction of justice, hearing directly from witnesses may seem the only constitutionally responsible course before deciding to oust a popularly elected president.
As Sen. Mike DeWine (R-Ohio) put it Monday, "It is hard for me to envision, as a trier of fact who has taken an oath, judging this case without seeing the most important witness or witnesses."
The managers argued that senators could obtain guidance in determining who is telling the truth in situations where accounts of the facts are in conflict. And where there is no conflict in testimony, hearing witnesses directly could help senators judge the credibility and reliability of their previous testimony.
"You need to be able to see the temperament," said Rep. Bill McCollum (R-Fla.). "You need to be able to have the background. You need to be able to have the feel and the flavor to draw these inferences properly."
Of the proposed witnesses, the managers yesterday described Lewinsky, in Bryant's words, as "probably the most relevant witness -- that is, aside from the president himself." Although, as the White House likes to point out, Lewinsky has been questioned at least 22 times (23 including her Sunday session with the managers), there would seem to be ample areas for productive questioning of her.
Even if she was not promised a job for her silence, did she feel that Jordan's new energies toward finding her a job in December 1997 and January 1998 were linked in any way to her surfacing on Dec. 5 on the witness list in the Jones case?
When Clinton suggested she could file an affidavit in order to avoid testifying, was it her understanding that he intended her to say false things in the affidavit? When, in the course of that conversation, he suggested that "you could always say you were coming to see Betty or that you were bringing me letters," did she understand that he was counseling her to provide false testimony in the Jones case?
Moreover, Lewinsky could address a new piece of evidence, a cellular telephone record showing a call from Currie at 3:32 p.m. on Dec. 28, the day Currie picked up the box of presidential gifts from Lewinsky. Does that record, as prosecutors argue, buttress Lewinsky's version of events because she had recalled a cellular call from Currie to her? Or does it undercut it, as the White House contends, since Lewinsky had repeatedly placed the time of the gift retrieval earlier, at 2 p.m.?
Similarly, Jordan -- who was not reinterviewed by Starr's prosecutors after they obtained Lewinsky's cooperation -- could be asked about his conflicting accounts of why he got her a job, sometimes saying it was a favor to Currie, sometimes saying the president had asked him to.
But the managers' arguments for calling Lewinsky and Jordan also argue for hearing from Currie as well. In justifying why not to call Currie, they agreed yesterday that Clinton's leading statements to her after the Jones deposition are key to their obstruction case. But they said Currie's subjective understanding of the conversations is not relevant to their allegation that Clinton intended to influence her potential testimony.
The White House, however, has a different understanding of the law and, in any case, directly hearing Currie's account of Clinton's tone of voice seems highly relevant to the assessment of his intent, particularly since Clinton professes no recall of the second of the two conversations.
And to contend that only the account of the gift transfer most damaging to Clinton -- not Currie's far more hazy but also more benign account -- should be heard also seems troubling. Indeed, McCollum had argued just that to the Senate a few days earlier, saying it was one of the situations "where the juror needs to hear from Betty Currie and Monica Lewinsky and to examine all of the circumstantial evidence and documentary evidence to determine the truth."
Rep. Asa Hutchinson (R-Ark.) said much the same thing. "Ms. Currie said the statements were made and taken in the sense that 'the president wished me to agree with the statement.' The president says, 'I was trying to get as much information as quickly as I could.' " he noted. "I would want to ask her: What did you say in response? Did you provide any information that the president was soliciting at that particular moment, according to the defense he has asserted?"
Likewise, Hutchinson said of conflicts between the testimony of Currie and Lewinsky about the gift exchange, "I do not think there is any way to resolve the conflicts in their testimony without calling witnesses."
Rogan said the Senate could invite Currie. "The senators are free to issue a subpoena for anyone they like," he said. "We hope she comes down."
Staff writer Juliet Eilperin contributed to this report.
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