Strip poker

As the three-way game between Clinton, Starr and Lewinsky reaches its conclusion, who's holding the winning hand?

Published June 23, 1998 7:00PM (EDT)

Independent counsel Kenneth Starr's investigation into the sex, perjury and obstruction of justice allegations against President Clinton and Monica Lewinsky is finally entering its final phase. Yet despite strategic leaks, feints and silences by both sides, legal experts remain sharply divided over how much of a threat the president is facing.

Some insist the president has nothing to worry about at all. Even if Starr gets Lewinsky to admit that she had sex with the president, as recent reports have suggested he might, Clinton's lawyers will respond with the president's unequivocal assertion that he "didn't have sexual relations with that woman" and demand that Starr prove Lewinsky's admission beyond a reasonable doubt. At the end of the day, says Stanley Brand, a prominent criminal defense lawyer in Washington, D.C., "it's a case of he said, she said."

"The president's legal exposure is zero," Brand says confidently.

Others are not so sanguine. These experts contend that Starr has painstakingly built his case against Clinton to the point where any admission of a sexual affair between Lewinsky and Clinton will set the stage for a prosecutorial push to prove obstruction of justice against Clinton. Still hanging out there, they caution, is the potentially explosive "talking points" document that Lewinsky used to try to get her friend Linda Tripp to change her version of what she claims she saw and heard when a disheveled Kathleen Willey emerged from the Oval Office in 1993.

"If the talking points document were to be connected to a White House official, this case would justifiably become a significant threat to the presidency," says Jonathan Turley, a law professor at George Washington University. "At that point, it reaches the magnitude of Watergate because the obstruction is then inside the White House."

The drama surrounding the Lewinsky affair palpably intensified over the weekend after reports that Lewinsky's new legal team had offered Starr an admission of sex with the president -- but no acknowledgment of any attempt by Clinton to get Lewinsky to lie about it -- in exchange for full immunity. The reports, which have been confirmed by sources close to the negotiations, said Starr has countered with an offer of a plea bargain for Lewinsky's admission of a sexual affair in which Lewinsky first pleads guilty to an undisclosed offense. Unless Lewinsky accepts this deal, Starr presumably will indict her for perjury, citing the discrepancy between her affidavit in the Paula Jones case, in which she swore that she did not have a sexual relationship with the president, and taped remarks in which Lewinsky reportedly says she had.

Brand, a former counsel for the House of Representatives, says that if he were involved in the high-stakes game of legal poker that is now under way between the two sides, he would call Starr's bluff.

"From a defense lawyer's side, I can't imagine why I would plead Monica Lewinsky to anything with these guys, given the jury verdicts that have come back on this kind of stuff," he said. "I would play pretty hard with them and say, 'Fine. Charge me,' and then take our chances in front of the 12 men and women tried and true."

Brand says recent verdicts, like the acquittal in New York last month of two Texaco executives charged with obstruction of justice after being caught on tape talking about destroying evidence in a racial discrimination case, suggest that juries require unambiguous proof to convict. "It's very hard to get a jury to the point where they send someone to jail unless it's absolutely clear that person acted improperly," he says.

Such a strategy could be extremely risky for Lewinsky, of course. Legal experts argue that the Texaco case, even though it rested on taped evidence like any Lewinsky case would, was far more complex and therefore not really comparable. "Juries tend to view perjury in a very simple and straightforward manner," says Turley. "The Lewinsky case is simply a matter of did she or didn't she lie when she swore under oath that she did not have sex with Clinton."

Moreover, he says, the commonly held view -- that a jury would be unlikely to find Lewinsky guilty of perjury for trying to hide a sexual relationship -- may not be true.

"That's an argument for jury nullification, which means that even though a person may have committed perjury, the jury should nonetheless ignore the crime because of the compelling nature of the defendant and the hostility of the prosecution," Turley says. "That's a very dangerous approach. It may not matter how compelling or sympathetic Ms. Lewinsky is as a defendant. The jury might just rule on whether the statements she made under oath were true."

Perhaps the only major point on which the legal experts agree is that Starr's investigation is reaching a decisive phase and that some sort of resolution to the question of Lewinsky's testimony is close at hand. "If a deal is going to be reached, it should be in the next couple of weeks," Turley says.

The offense to which Starr is seeking Lewinsky's admission of guilt in his proposed plea bargain is most likely perjury, Turley says, noting that such a plea would give Starr's obstruction of justice case against the president more traction.

"Few juries believe that a defendant would plead guilty to a crime that she did not commit, so it certainly increases the credibility of the prosecution's theory that a criminal act did in fact occur," says Turley, who worked for Ted Kennedy's presidential campaign and who describes himself as a liberal Democrat. "So a plea from Ms. Lewinsky would establish the underlying criminal conduct, with an obvious connection to the president."

Brand says the president's lawyers would counter any such admission by challenging Starr to prove that Lewinsky had sex with Clinton when the president says she didn't. "How does Starr prove that she did -- he brings in the Secret Service and they say, 'Oh, they were in the Oval Office together'? So what? The credibility of each will be at issue, and her life and her past will become part of the fight over credibility."

But the legal fight wouldn't end there. Should Lewinsky cop such a plea, the final phase of Starr's investigation would involve determining the motive for her perjury. "The prosecutors could make an argument that her perjury was prompted by either the president or individuals close to the president. In a case of this kind, a unilateral act of perjury appears somewhat implausible," Turley says. "The prosecutors can argue that it's unlikely that a White House intern would take the extraordinary step of lying under oath without some strong motivation or influence."

That's why the source of the "talking points" document is so crucial to Starr's case against the president. "From the prosecution's point of view, the talking points would fit rather neatly into their theory of obstruction and subornation of perjury in the case," Turley says.

Building a case against a presidential aide would depend on whether Starr could get Lewinsky to say a specific person authored the talking points document. But there is no indication that she is willing to say such a thing, or even if she knows who the author of the document was. Starr also could try to determine its source by using literary forensics -- the science of comparing phraseology and style to establish authorship. Such methods were used successfully to smoke out Joe Klein, who admitted that he was the anonymous author of the 1996 roman ` clef, "Primary Colors." But such evidence would be circumstantial, and without a similar admission by the author, inconclusive.

Even as Starr's investigation presumably enters its final phase, legal experts caution that the final stretch could still be a long one. "Once the final witnesses come before the grand jury, that leaves only the president and his aides," says Turley. "If Clinton refuses to testify by invitation, Starr could compel his testimony through subpoena, which would make Clinton the first president in history to be subpoenaed at 1600 Pennsylvania Ave."

Brand agrees. No matter what happens, he says, "It will be a messy, messy situation."

By Jonathan Broder

Jonathan Broder is Salon's Washington correspondent.

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