Is Fraught With Risks
By Susan Schmidt
White House political advisers, talking heads of every partisan stripe and even the chairman of the Senate Judiciary Committee have all but written the script for a presidential confession in the Monica S. Lewinsky investigation.
But the "mea culpa" scenario which assumes the unproven theory that President Clinton has not told the truth about his relationship with the former White House intern is fraught with enormous risks. Clinton faces grand jury questioning Aug. 17 by independent counsel Kenneth W. Starr. If the president reverses his sworn denial of an affair with Lewinsky, he would essentially be admitting to having committed perjury.
"Starr would if the president were to say he had in fact lied in the Paula Jones suit write a very tough report to Congress or indict him," said Jane Sherburne, former deputy counsel in the Clinton White House. "It carries a high risk and collateral consequences."
White House officials insist the president told the truth in January when he said he did not have a sexual relationship with Lewinsky or urge her to lie about it under oath. Despite Lewinsky's grand jury testimony last week that she had numerous sexual encounters with Clinton in the White House, Clinton's aides say he has no intention of changing his story when he testifies next week.
But, with what one outside presidential adviser called a "mound of evidence" now pointing to the contrary, the political pressure for an accounting by the president even if conflicts with his earlier statements is growing.
The risks of an about-face, however, are political as well as legal. For Clinton, admitting he lied about an affair might take the sting out of Starr's expected report and lessen chances of impeachment proceedings by an already reluctant Congress. But it could backfire, too. A public that has largely said it is weary of Starr's investigation and believes sex is a private matter could abruptly turn away from the president who so publicly denied any sexual relations with "that woman" in January. Such a shift could affect the way Congress handles Starr's report.
Privately, many Clinton advisers say they would be astonished if the president follows the mea culpa route so thoroughly does it contradict his temperament and previous history. At past junctures, he has avoided public acts of contrition even when his aides pushed such a strategy.
In 1982, when he was trying to win back the Arkansas governor's mansion two years after being ousted, Clinton's advisers wanted him to apologize to the state for unpopular actions in his first term, most notably raising the car license tax. But Clinton argued strenuously with consultant Dick Morris about whether even to use the word "apology," and in a last-minute switch rephrased a television ad simply to say he would not make the same mistake again if voters gave him a second chance.
Similarly, in 1992, when his presidential campaign went with the contrition strategy during the Gennifer Flowers controversy, he and Hillary Rodham Clinton appeared on "60 Minutes" and he admitted causing "pain in my marriage." But he denied Flowers's allegation of a 12-year affair without admitting that he ever had sex with her. Only under oath nearly six years later in the Jones case would he acknowledge having a tryst with Flowers, although he said it only happened once.
The view that a public statement by Clinton would dispense with the Lewinsky matter is almost certainly wrong, said political adviser James Carville. Starr's long-running Whitewater inquiry, Carville said, has taught the president that trying to provide information in an investigation never puts the questions to rest.
His advice: "Go in, tell the grand jury the truth, go on vacation."
While many advisers find it implausible that Clinton would make any kind of full admission, they consider a partial acknowledgment more possible. Under this scenario, advisers say, Clinton could offer some vague explanation in which he suggests that he allowed a relationship to become inappropriately close, but not the intimate affair that Lewinsky reportedly described in her grand jury testimony. Skeptics call this the "I-didn't-inhale" defense, recalling his famous answer to whether he ever smoked marijuana, and argue that such a hedged admission would not solve the problem.
Acknowledging that he lied in his Jones deposition about Lewinsky would be tantamount to admitting perjury. Clinton's lawyers would likely argue that his denial of sexual relations with her was not even material to the Jones case and therefore did not technically amount to perjury.
But Clinton's lawyers must consider the possibility that the independent counsel could seek to indict the president. The Constitution provides for impeachment by Congress as the remedy for "high crimes and misdemeanors" by a president and for that reason, many constitutional experts do not believe a president can be indicted. But Starr's office has studied the subject closely and may not agree.
But other attorneys doubted it would make that much difference. "Even if he did a mea culpa, it has very limited relevancy in her case," said Debra S. Katz, a Washington attorney who handles sexual harassment cases. "The court of appeals is not going to consider that testimony as the bombshell to reopen the case."
Clinton's lawyers who advised him against testifying at all before the grand jury, according to legal sources are limited in helping him decide whether to make any changes to the testimony he gave in the Jones suit. If Clinton, for example, confided to his lawyers that certain events occurred and then testified otherwise before the grand jury, ethical rules would require his lawyers to resign because they cannot knowingly allow a client to offer false testimony.
"Clinton is very isolated," said legal ethics expert Stephen Gillers. "He has to make this decision pretty much himself."
If Clinton does change his story when he testifies before the grand jury Senate Judiciary Chairman Orrin G. Hatch (R-Utah) suggested last weekend that Clinton might admit he lied but say he did so to protect his family a relieved Congress might seize upon the chance to avoid impeachment proceedings.
In the case of a Clinton admission, said Sherburne, "there's a pretty good chance Congress would say thank you very much for the report," and do no more.
But Starr has also been investigating whether Clinton obstructed justice or suborned perjury in the Jones suit, and if he included such charges in a report to Congress that could be harder for lawmakers to ignore.
Much would depend on what Clinton actually said, Sherburne said, and "whether we buy it. . . . What if the conclusion is we can't? At some point the cumulative weight of what he had to explain would make it pretty difficult."
Clinton and his lawyers cannot dismiss out of hand the possibility that Starr would indict the president. Lawyers in the independent counsel's office have spent significant time researching the question, and University of Illinois professor Ronald D. Rotunda, a consultant to Starr, believes it is possible, although he would not comment on the state of discussions in Starr's office on the question.
The Constitution does not say whether a president can be indicted, but many scholars argue such an action is unconstitutional because doing so would incapacitate the entire executive branch of government; because federal prosecutors are subject to the president's control; and because the Constitution specifically sets out impeachment as the course for punishing crimes by a president.
But Rotunda has written that based on the Supreme Court's unanimous decision to allow Jones to proceed with her civil suit against Clinton while he is in office, he does not believe the court would find a bar to indicting a sitting president. Other legal scholars have argued that it is constitutionally possible to indict a sitting president if prosecution is deferred until he leaves office.
A more likely byproduct of any mea culpa by Clinton is new legal machinations by Jones's lawyers.
An admission of deception in the Jones case could help resurrect the lawsuit itself. U.S. District Judge Susan Webber Wright ruled that the Lewinsky situation could not be used as part of the case because she did not want it to interfere with Starr's investigation. Wright later tossed out the suit altogether.
But one of the grounds that Jones's lawyers cited in appealing to the 8th U.S. Circuit Court of Appeals was their assertion that Clinton's team had engaged in a broad pattern of trying to impede justice in their case, which they said should undermine the credibility of the president's entire defense. Any statement by Clinton acknowledging a misstatement in his deposition would doubtlessly be added to the appeal.
"If there is a public admission by defendant Clinton then that certainly would shore up our existing argument . . . and the 8th Circuit certainly would be able to consider that admission as they decide Paula's appeal," said Jones's chief attorney, Donovan Campbell Jr.
In addition, Jones's attorneys have been researching federal statutes, including one they believe could allow her to file a separate lawsuit against Clinton and others alleging they conspired to violated her civil rights by trying to influence testimony and impede justice in the original lawsuit.
Steven Goldstein of the Insurance Information Institute said that if Clinton admits deception in the Jones deposition, it might cause his insurance companies to rethink paying for Clinton's defense as the Jones team appeals, although insurers would be unlikely to try to recoup the $1.5 million already spent. "It would obviously cause a complete review," he said. "The insured's obligation is to tell the truth."
Other women who were prospective witnesses in the Jones suit could also try to take legal action. Dolly Kyle Browning, a childhood friend of Clinton's who claimed to have had a long-running affair with him, has hired attorney Larry Klayman for a possible defamation lawsuit against Clinton, who denied her story. "They branded Dolly as someone who didn't tell the truth," said Klayman, the conservative lawyer who has filed nearly 20 different suits against the Clinton administration. An admission now of an affair with Lewinsky would be evidence of "a pattern of similar conduct," he argued.
Staff writers Peter Baker and John F. Harris contributed to this report.
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