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President Has Been Served Subpoena

By Susan Schmidt and Ruth Marcus
Washington Post Staff Writers
Sunday, July 26, 1998; Page A01

Independent counsel Kenneth W. Starr has served a subpoena on President Clinton that requires his testimony in the Monica S. Lewinsky investigation as early as this week, a legal source said yesterday. The move marks the first time a sitting president has been summoned to appear before a grand jury.

The White House, which said Friday that Clinton's private lawyer was working with Starr's office "to try to ensure that the grand jury gets the information it needs," was close-mouthed about the subpoena.

"We're not confirming or denying" whether Clinton has been summoned to testify, spokesman James Kennedy said yesterday. "I am not now, and do not expect in the future to be able to talk about this in any respect," said White House counsel Charles F.C. Ruff.

The subpoena was served on Clinton's lawyers within the past several weeks, the legal source said, and bears a return date for this week. Subpoenas in the investigation have usually been served on the attorneys representing the principal figures.

The issuance of a subpoena represents a dramatic escalation in Starr's confrontation with Clinton, and presents the president with both political and legal dilemmas.

The prospect of being seen defying a subpoena for his testimony -- even if he were to couch his opposition in high-sounding constitutional terms -- is not a politically appealing one for a sitting president. And while Clinton would retain the right of all those called before the grand jury to invoke his rights against self-incrimination, that is perhaps an even less politically palatable option.

Several sources said that Clinton and his lawyers are determined that he not have to appear before the grand jury and be permitted instead to give either a deposition under oath or provide written answers to questions from Starr. Those sources said Clinton's lawyers could seek to have a subpoena rescinded if an agreement is reached on the terms of his testimony. In addition, Clinton's lawyers are seeking to limit the scope of any questions posed to the president.

The president's willingness to submit to any questioning is a turnabout from his previous position. The president's lawyers earlier had rebuffed about a half-dozen invitations from Starr to provide testimony voluntarily. Now that the subpoena has served to get Clinton's attention, it could be withdrawn if the president were now to agree to provide testimony in a different setting than the grand jury room and Starr were to accept that offer. Clinton has previously answered questions under oath from Starr's prosecutors at the White House, questioning that centered on the Whitewater real estate investment.

Starr, who appears to be close to wrapping up the investigative phase of inquiry into Clinton's relationship with former White House intern Lewinsky, has some obvious incentives to accept a compromise offer of presidential testimony. If Clinton were to challenge the subpoena on grounds that a sitting president cannot be compelled to testify, litigation over that constitutional question could tie up the courts for weeks, if not months.

Starr is investigating whether Clinton or others lied under oath, encouraged others to lie, or obstructed justice in actions relating to the Paula Jones sexual harassment lawsuit. Clinton and Lewinsky both asserted under oath in that case, which has since been dismissed, that they did not have a sexual relationship.

Starr's prosecutors want to question the president about his involvement with Lewinsky, who began work at the White House in 1995 and later moved to the Pentagon, and his actions after she was subpoenaed last December to testify in Jones case, including efforts by his close friend, attorney Vernon E. Jordan, to help find her a job. Clinton has said almost nothing about the matter since asserting in late January that he did not have a sexual relationship with "that woman" and promising to provide information "sooner rather than later." It is not known whether Starr would be willing to withdraw his grand jury subpoena in exchange for Clinton's testimony in another forum. Asked for Starr's position, spokesman Charles G. Bakaly Jr. cited rules of grand jury secrecy and said he could not comment on the matter. Clinton attorney David E. Kendall was vacationing in Canada and could not be reached for comment.

Despite White House suggestions Friday that negotiations between the two sides are underway, it seems unlikely that any agreement will occur this weekend, with Clinton on a trip to the West and Kendall out of the country.

In carefully scripted comments to reporters Friday, White House spokesman Michael McCurry said the president's lawyers were in discussions with Starr's office over how he could provide information to the grand jury. McCurry refused to say whether Clinton had received a subpoena, asserting the White House had no obligation to disclose that information because grand jury proceedings are "held in secret because the rights of individual citizens in this country are protected."

No court has ever decided whether a sitting president may constitutionally be compelled to testify before a grand jury. In the Watergate tapes case, the Supreme Court ruled unanimously that President Richard M. Nixon had to comply with a subpoena for the tapes -- not his personal testimony -- for use in a pending criminal trial.

Because the Constitution provides that the president may only be removed from office by Congress through the impeachment mechanism, many legal scholars believe that a sitting president cannot be prosecuted -- although a president could be prosecuted after removal from office.

One corollary of that line of argument is that if the Constitution prohibits the chief executive from being prosecuted by the executive branch, it also would prohibit him from being subpoenaed to testify.

Former White House counsel Jack Quinn wrote in a recent Wall Street Journal op-ed piece that Clinton's oath to uphold the Constitution requires him "to resist unreasonable encroachment by the other branches."

Quinn said that if he "were still the president's lawyer, I would advise him to challenge a subpoena from Mr. Starr on constitutional grounds. Given its effect on the Constitution and the presidency, the argument that the president must answer unproved allegations against him before a grand jury is scary. If Mr. Starr were deemed to possess such power, it would not be limited to independent counsels, because any state or local prosecutor could similarly haul a president before a grand jury. That is simply not what the founders intended."

However, Starr has not ruled out the possibility of prosecuting Clinton rather than referring his information to the House for impeachment proceedings. And some legal scholars, including those advising Starr, say that, whether or not a sitting president can be indicted, Supreme Court opinions suggest that he should at least be subject to a grand jury subpoena.

"Most legal thinking on this that we've seen says that you can subpoena a sitting president," Bakaly said on CNN's "Late Edition" earlier this month. He compared Clinton's balking at providing testimony with the contempt citation imposed on his Whitewater business partner, Susan McDougal for refusing to answer questions for Starr's prosecutors even after being given immunity.

But Bakaly acknowledged the special difficulties of dealing with presidential testimony. "How does a federal judge hold a president in contempt," he noted.

Starr supporters point not only to the Watergate tapes case but to the Supreme Court's ruling last year rejecting Clinton's claim of immunity while in office from being subject to a civil lawsuit in the Jones case. Law professor Ronald D. Rotunda, who has served as a consultant to Starr, said, "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. I don't see any special presidential privilege from subpoenas. There's absolutely no case law that supports it."

The White House's handling of the subpoena as top-secret information was in contrast to its public announcement of the subpoena served on first lady Hillary Rodham Clinton in January 1996, during the investigation into the sudden reappearance of Rose Law Firm billing records in the White House residence.

That subpoena enraged White House lawyers who thought Starr was overreaching in summoning the first lady to the courthouse and should have questioned her in private, as had been done previously. But the White House itself announced the subpoena, in large measure because officials were convinced it would leak in any case.

© Copyright 1998 The Washington Post Company

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