WASHINGTON - As a federal appeals court pushed Bruce Lindsey toward
testifying before a grand jury, and Monica Lewinsky edged closer to jumping
in as well, President Clinton Monday found that he soon may be the last
major figure to resist testifying in Kenneth Starr's investigation.
The developments were graphic indicators of how difficult it will be,
politically and legally, for the president to avoid Mr. Starr's demand that
he answer questions under oath. They also were reminders of the perils Mr.
Clinton faces now that Mr. Starr is succeeding in amassing testimony and
evidence.
In a private interview Monday, Ms. Lewinsky told Mr. Starr's
investigators that she had a sexual relationship with the president,
according to people on each side of the case, and is on the verge of an
agreement to provide testimony. But surprisingly enough, if Mr. Clinton
does choose to testify, the question he least wants to answer probably
isn't the one that most occupies the public: Did he have an affair with Ms.
Lewinsky?
Being asked about an alleged extramarital affair before a grand jury
obviously would make the president -- or anyone else -- uncomfortable. But
the bigger dangers may lie on related matters where credible witnesses or
other evidence could contradict Mr. Clinton.
The president's case for resisting the call to testify grew weaker
Monday, when the U.S. Court of Appeals here ordered Mr. Lindsey to testify
before Mr. Starr's grand jury, knocking down his assertion of lawyer-client
privilege. Mr. Starr has now won a string of court victories against
uncooperative witnesses. The decision could also mean other White House
lawyers will be called to testify -- yet another hazard for Mr.
Clinton.
Ms. Lewinsky had her first face-to-face meeting with Mr. Starr's staff
since early this year, a strong sign she is close to a deal under which she
testifies about her relationship with Mr. Clinton in exchange for leniency.
The meeting was in New York City and apparently was conducted under "queen
for a day" rules that allow potential witnesses to give prosecutors a
preview of their testimony without placing themselves in jeopardy.
As of Monday night, it still wasn't clear whether Mr. Clinton would
submit to an interrogation under oath by Mr. Starr, despite a subpoena
commanding him to do so. "We are working with the Office of Independent
Counsel as we have in the past to devise a way for the president to provide
information for the OIC's investigation consistent with his constitutional
role and responsibilities," the president's private lawyer, David Kendall,
said in a statement.
The White House is considering many issues, people familiar with the
matter say, including the constitutional question of whether a grand jury
is the appropriate forum for a president to be questioned about his
conduct. But by necessity, a big part of the consideration comes down to
nuts-and-bolts criminal-defense issues.
Ms. Lewinsky, if and when she testifies before Mr. Starr, isn't likely
to have great credibility on the question of whether she had an affair with
the president, now that she has changed her story. There probably are no
other witnesses to any intimate contacts. The question is likely to be a
classic he-said, she-said matter.
The more real danger is that Mr. Clinton will give testimony on related
matters that contradicts physical evidence or other, more credible
witnesses. That wouldn't concern whether Mr. Clinton had an affair, but
rather whether he was involved in improper efforts to influence the
testimony of Ms. Lewinsky or otherwise undermine the Paula Jones
sexual-harassment case.
The grand jury has heard from Vernon Jordan, the president's confidant,
and Betty Currie, the president's secretary. Both had extensive dealings
with Ms. Lewinsky and the president, some of them concerning Ms. Lewinsky's
role in the Jones case, and both have been described as giving extensive,
detailed testimony about Mr. Clinton's role in these matters. In his
deposition for the Paula Jones case, Mr. Clinton portrayed himself as only
vaguely aware of efforts to help the former White House intern. In the wake
of Monday's ruling, Mr. Clinton also may have to worry about what Mr.
Lindsey says, although his loyalty to the president has seemed
unshakable.
"A government attorney may not invoke the attorney-client privilege in
response to grand-jury questions seeking information relating to the
possible commission of a federal crime," the three judges ruled. It was Mr.
Lindsey who first informed the president that Ms. Jones's lawyers had
subpoenaed Ms. Lewinsky to ask about an alleged affair. It isn't clear
whether Mr. Lindsey will appeal his case to the full Appeals Court or
possibly to the Supreme Court. One possibility: The independent counsel
will seek to force Mr. Lindsey's testimony before any appeal can be
heard.
For Mr. Clinton, problems could lie in how his testimony stacks up
against both his own previous sworn statement and detailed accounts given
by others. Specifically, he has to worry about such matters as his
assertion that he didn't cause a meeting to be set up between Mr. Jordan
and Ms. Lewinsky. "What my memory of this is, if you're asking me did I set
the meeting up, I do not believe that I did," he testified in the Jones
case. "I think that [Ms. Lewinsky] and Betty were close, and I think Betty
did it." Conceivably, that is open to contradiction by Mr. Jordan, Ms.
Currie and Ms. Lewinsky.
While it won't be unassailable, testimony by Ms. Lewinsky on matters not
directly related to sex is another potential problem area. With Ms.
Lewinsky's meeting with Mr. Starr Monday, it seemed likely she would be
appearing before the grand jury eventually and could talk about whether Mr.
Clinton ever encouraged her to lie.
Beyond the particular contours of the Lewinsky investigation are other
basic downsides to an appearance. Defense lawyers almost always advise
their clients against testifying if their clients are targeted by a
prosecutor, says Jack King of the National Association of Criminal Defense
Lawyers, because "in all likelihood his statements will be used against him
by the government." While Mr. Clinton hasn't been informed by Mr. Starr
that he is a target, "for all intents and purposes he is the target of this
investigation whether he got a target letter or not."
Ordinarily, citizens can invoke the Fifth Amendment to avoid questioning
by a prosecutor. Most people think Mr. Clinton can't do that for political
reasons, but the president could refuse to testify on loftier grounds. Some
in the White House and elsewhere believe the only body empowered under the
Constitution to question the president's conduct is the House of
Representatives. Many scholars believe presidents can't be indicted and
thus, by extension, shouldn't be forced to testify potentially against
themselves.
"I think there's a strong constitutional case to be made that a subpoena
can't be enforced against the president, but it is an open question in
constitutional law," said Paul Rothstein of Georgetown University Law
Center.
Whether the president testifies may come down to considerations of law
and defense strategy rather than the finer points of the negotiations
between Mr. Kendall and prosecutors. The two sides aren't far from an
agreement. Mr. Kendall wants to sit in on Mr. Clinton's testimony, have it
take place at the White House, know in advance what it will concern and
have limits on its scope. While these would be extraordinary demands in a
regular criminal case, Mr. Starr has agreed to most of them on previous
occasions.
The only truly large concession Mr. Starr would be making, lawyers
familiar with the case say, would be to agree to limits on scope. He might
do so to force an agreement with Mr. Kendall and bring Mr. Clinton to the
witness stand whether he wants to be there or not.
Copyright © 1998 Dow Jones & Company, Inc. All Rights Reserved.
