Newsreal: Advantage, Starr?

Independent Counsel Kenneth Starr has the Whip hand in the latest Clinton sex scandal. And that has more than just the President concerned.

Published January 23, 1998 8:00PM (EST)

WASHINGTON --The ball is no longer in President Clinton's court.

While the "outraged" president denies that he slept with a 21-year-old White House intern and then instructed her to lie about the affair, it is up to his longtime nemesis, Whitewater independent counsel Kenneth Starr, to exonerate Clinton or extinguish his presidency.

What Starr now has on his plate is much more than a penny-ante land deal gone wrong. He is investigating the most serious allegations to be leveled against a sitting president since the Watergate scandal that brought down Richard Nixon. And some people are wondering just how Starr got to be in such a position -- and if he's the right man for the job.

"Why is Kenneth Starr so obsessed about Bill Clinton's sex life?" a woman named Gail asked on a local Washington radio talk show. "Who cares? If Starr is so determined to get Clinton, he can cut him to pieces after he's finished his term."

The caller's sentiment echoes charges made by President Clinton's defenders: that Starr is a partisan Republican with strong ties to the ultraconservative Christian right who is pursuing an avowedly political agenda. Gene Lyons, a political columnist for the Arkansas Democrat Gazette, only half-jokingly opined that Starr was leading a "coup d'itat."

Earlier this week, Starr won the approval of a federal panel to include these latest sexual allegations against Clinton in his four-year-long Whitewater probe after he presented the judges with secretly tape-recorded statements of Monica Lewinsky, a 24-year-old former White House intern, claiming that she and Clinton had a sexual relationship and that Clinton and his close advisor, Vernon Jordan, had instructed her to lie about it if questioned.

Starr has also issued sweeping subpoenas for White House visitors logs and Secret Service records of the president's minute-by-minute whereabouts to determine if and when Clinton met Lewinsky at the White House. Starr is also seeking records of any gifts that the president may have given Lewinsky, as well as any presents that she may have given him.

Raising eyebrows is the manner in which Starr has obtained evidence in the case so far. Unknown to her, Lewinsky's original statements were illegally recorded by a friend, Linda Tripp, who turned them over to the independent counsel's office. Starr, after granting Tripp immunity for the illegal taping, then wired her with a microphone and had her meet again with Lewinsky, who repeated her claims, unaware that the tape would be used by the independent counsel.

"This is bottom fishing, as far as I'm concerned, and I have to hold my nose to even read about this thing," said Abner Mikva, a former White House counsel to Clinton, now a law professor at the University of Chicago. "Any prosecutor worth his salt wouldn't touch this with a 10-foot pole. What kind of hard evidence does he have? He's got illegally recorded tapes of two woman talking to each other, both of whom are less than reliable. Is there a tape of the president or Jordan talking about suborning of perjury? There isn't. If the president and Vernon Jordan told this woman to lie under oath, that's a serious charge. But what is the evidence of that? What Starr has is garbage."

Mikva also questioned the judgment and motives of Judge David Sentelle, a Republican appointee who heads the federal panel that authorized Starr to probe Lewinsky's allegations. "Judge Sentelle authorizes the wearing of a wire," Mikva said incredulously. "So this has to be a really important matter of national security, right?"

Even some Republicans have doubts about Starr's stewardship of the investigation. "The independent counsel's office is not the ideal place to clear this up," said C. Boyden Gray, a former White House counsel to President George Bush. "I'm not sure I know what the ideal place is. It's very tricky."

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Sources close to the investigation said Starr sought to expand his probe into Lewinsky's allegations because he sensed a "pattern of obstruction" of justice involving the president and Jordan. Starr has long maintained that the main reason why the Whitewater investigation has dragged on for so long is White House stonewalling.

One of Starr's only convictions was of former Deputy Attorney General Webster Hubbell, sentenced to two years in jail for embezzling money from the Rose Law Firm in Little Rock, Ark., where he and Hillary Clinton were once partners. But Starr failed to win Hubbell's cooperation in further indictments and suspects that hush money was funneled to Hubbell through Jordan and Revlon Inc., where Jordan serves on the board. Both Hubbell and Jordan have denied the allegations. Last week, Starr's investigators learned that Jordan tried to get Lewinsky a job at Revlon, triggering the "pattern of obstruction" allegation made by Starr.

Despite the swiftness of his moves, even Republicans are concerned about whether Starr will resolve the case quickly.
"Now that this thing is in play, you can't just having it hanging around," Gray said. "There needs to be a quick resolution of the truth or falsity of these charges, and I'm talking about days or weeks, not months."

On Friday, lawyers for Paula Jones, also trying to establish a pattern in President Clinton's behavior, had planned to depose Lewinsky and ask her if she ever had an affair with the president. Lewinsky already has provided a sworn affidavit saying she did not,
and according to legal sources was going to refuse to testify, invoking her Fifth Amendment right against self-incrimination.

But in a late development Thursday, Judge Susan Webber Wright announced the deposition in the Jones case had been postponed "indefinitely." According to former federal prosecutor Joseph DiGenova, the delay came at the behest of Starr.

"At this point, he doesn't want people having contact with her who might attempt to influence her in any way," said DiGenova, referring to Clinton attorneys who would be present at the deposition. "People who might frighten her by their presence, by their scowls, by all sorts of things."

At some point, Starr will have to allow Jones' lawyers to depose Lewinsky. If she then invokes her Fifth Amendment right, or does so at a grand jury summoned by Starr, then he has a number of options. He could indict Lewinsky for perjury, citing her statements in her original affidavit and the fact that she was now refusing to confirm or deny that statement.

More likely, these experts said, is the possibility that Starr will offer Lewinsky immunity from such charges, in the hope that she would testify about what she said on the tapes. Investigators say Starr is particularly interested in questioning Lewinsky about one taped conversation in which she appears to be coaching Tripp on how to change her own previous remarks if deposed by Jones' lawyers about an alleged sexual encounter in 1993 between Clinton and White House staffer Kathleen Willey.

In August of that year, Tripp told Newsweek, she had seen Willey emerge from the Oval Office with her make-up smudged and her clothing askew and that Willey had told her she had just had a sexual encounter with the president. On Thursday, Newsweek reported that Lewinsky, working from a legalistic-sounding list of "talking points," gave instructions to Tripp about changing her account. According to Newsweek, Lewinsky can be heard instructing Tripp to say that "what she thought happened didn't happen" and that she now believes that Willey smudged her make-up and untucked her blouse herself.

Under this scenario, Starr also would be likely to ask Lewinsky to waive her attorney-client privilege with her former lawyer, Fred Carter, whose services were reportedly arranged by Jordan. Starr could then question her about how Carter came to represent her, what advice he gave her and, most important, who drew up the list of "talking points" that she read to Tripp. With the waiver of the attorney-client privilege, Starr also could call Carter before the grand jury for questioning.

If Lewinsky decides to stick to her original claim on the affidavit that she had no sexual relationship with the president and that all of her claims on the tapes were lies, experts say Starr, armed with the tapes and Tripp's testimony, would probably indict Lewinsky for perjury and suborning of perjury, claiming that she was lying in the affidavit.

"I strongly doubt she's going to go through that," said DiGenova. "It doesn't serve her interests to get indicted for perjury when she can cut a deal and get this thing behind her as quickly as possible."

What's next for Starr once he's through with Lewinsky?

"Ultimately, you run into the question of what you do once you've got all the facts," Gray said. "What Starr should do is develop everything he can and then make it public. Let the court of public opinion deal with it. And hopefully, he will do that very quickly."

By Jonathan Broder

Jonathan Broder is Salon's Washington correspondent.

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Bill Clinton Hillary Rodham Clinton White House