Naked man without a plan

Clinton's defense team prepares a tortured legalistic argument that may help him escape legal jeopardy, but it will only make impeachment all the more likely.

Published September 9, 1998 7:00PM (EDT)

As the White House braces for a sweeping report to Congress on the Monica Lewinsky affair by independent counsel Kenneth Starr, President Clinton is preparing a narrow, legalistic defense that ultimately may only weaken him further in the ultimate court of public opinion, legal experts and others familiar with this strategy have told Salon.

After four years of investigating Whitewater, Travelgate, Filegate, the suicide of Vince Foster and the Lewinsky affair, Starr is now expected to submit to Congress a detailed report sometime later this month. The White House is anticipating a highly partisan report that will include evidence that Clinton committed a variety of crimes, including perjury, obstruction of justice and abuse of power. Clinton's advisors clearly hope Starr's report will focus primarily on the Lewinsky affair, but there have been mixed signals from Starr's camp on whether that will be the case.

"What this case is about is sex," one senior White House advisor argues. "Of course, Starr will try to prove that it's more than sex, that it's about obstruction, perjury and God knows what else. But this is not a legal case. This is about two people who had consensual sex. Now, that in itself is not very appropriate, but it's not illegal. There's nothing here that's impeachable."

As David Kendall, the president's lawyer, gathers information for a rebuttal that might be presented as an answer to Starr's report, Clinton's legal and senior political advisors are confident they can knock down whatever evidence Starr produces about Clinton's alleged crimes. As a sign of their willingness to fight, the president's men have reconstituted the legendary "War Room," where Clinton's campaign and policy teams responded quickly to crises and criticism. The White House is also considering the hiring of new staffers to bolster the president's defense team.

On the expected evidence of perjury, Clinton's advisors are sticking to the line that despite his Aug. 17 admission of having had an "inappropriate" relationship with Lewinsky, the president's insistence that they had no "sexual relationship" is still, as the president phrased it, "legally accurate." With regard to Starr's efforts to prove obstruction of justice, Salon has learned that Kendall has devised a new, if questionable, timeline to show that Lewinsky returned the gifts she had received from Clinton before the gifts were subpoenaed by Paula Jones' attorneys. And on the issue of abuse of power, the president's legal team snorts at the notion that Clinton's use of White House lawyers to fight Starr's subpoenas constituted a crime.

But legal experts, including lawyers familiar with the president's strategy, say his defense plan is far too dependent on legalisms and linguistic hair-splitting to protect Clinton from possible impeachment. They note that once Starr submits his report to the House Judiciary Committee, the Lewinsky affair becomes a legal and political hybrid. Which is to say that what might work for Clinton in a court of law may not work before Congress, where members will be responding as much to public disgust with Clinton's admitted behavior as they will to the law.

"His defenses to all of these charges seem to be very legalistic," says Michael Zeldin, a former independent counsel who has frequently spoken in defense of the president on television talk shows. "They're not based on innocence so much as they are on nuance and parsing of language.

"In the court of public opinion, that's very bad for Clinton because now that he's admitted to being a liar, it's harder for him to ask for people to bear with him on these other explanations, which are highly legalistic to begin with," Zeldin told Salon. "He seems to be ignoring the reality that once you've lied about one thing, there's almost a presumption that you're lying about something else."

Starr's office has given no indication of what kind of evidence will be included in his report, but among White House officials, the president's legal advisors and independent legal experts, it is widely believed that the report will focus on three major criminal areas: perjury, obstruction of justice and abuse of power.

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On the question of perjury, Clinton's legal advisers are assuming Starr will argue in his report that the relationship between Clinton and Lewinsky meets the definition of sex set forth by Judge Susan Webber Wright during Clinton's Jan. 17 deposition for the Paula Jones sexual misconduct trial. That definition included "contact with genitalia, anus, groin, breast, inner thigh or buttocks of any person with the intent to arouse or gratify the sexual desire of any person." Recent news reports say Lewinsky provided Starr with the details of at least six encounters with the president that meet Judge Wright's definition of sex. In the now-dismissed Jones civil case, Clinton denied under oath that he had a sexual relationship with Lewinsky, and therefore Starr is expected to claim that the president perjured himself.

Legal experts say Clinton's insistence that his denial was "legally accurate" is based on an extremely narrow reading of Judge Wright's definition of sex. Jeffrey Rosen, a law professor at George Washington University and another commentator who has been sympathetic to the president, notes that Clinton's perjury defense centers on his claimed passivity during his sexual encounters with Lewinsky.

"According to Judge Wright's definition of sex, Clinton had to have engaged or caused contact with Lewinsky's private parts -- in other words, he had to be active," Rosen says. "Clinton's defense is essentially that she gave him oral sex, which means he was passive." Rosen also notes that if Starr produces evidence confirming reports that Clinton masturbated while Lewinsky stimulated herself in front of him with a cigar, the president again could argue he was passive.

"If it's true that Clinton had the amazing self-restraint and legalistic discipline to spend the entire time masturbating, then maybe he's in the clear," Rosen says, his voice laden with skepticism. "But it seems very implausible. All Starr has to show is that Monica claimed that he touched her private parts, and that defense collapses. Politically, the perjury stuff is going to be really embarrassing. I don't know if it would make sense to put all their eggs in that particular basket."

A better defense, Rosen says, would be for Clinton's lawyers to argue that lying under oath about sex in civil cases is the sort of thing that prosecutors ordinarily don't pursue. "That's a good argument," he says. "That's a better argument than 'All I did was jack off.'" But even with this defense, Clinton would be in trouble politically. Asked on ABC's "This Week" if presidential perjury in a civil case were an impeachable offense, Sen. Daniel Moynihan minced no words. "Yes," the Democratic senator replied. The same was true, Moynihan added, if Starr produced evidence showing Clinton perjured himself during his Aug. 17 grand jury testimony.

Clinton's next big worry is evidence pointing to obstruction of justice, another impeachable offense. Clinton's legal advisers expect Starr's report to focus on the president's alleged efforts to retrieve a book of poems, a pin and other gifts he gave to Lewinsky and to conceal them from Jones' attorneys, who had subpoenaed them.

"The president will have to come up with an innocent explanation why he would want a potential witness to return all gifts to the White House," says Jonathan Turley, a law professor at George Washington University who has been highly critical of the president's legal strategy. "Most people are not in the habit of calling around and collecting last year's fruit cakes."

Turley adds that Clinton's confession to having had an "inappropriate" relationship with Lewinsky, which he then admittedly tried to cover up for seven months, will both strengthen Starr's efforts to demonstrate obstruction and make any impeachment proceedings on that charge that much easier for Congress. "It is easier to make an obstruction or subornation case if you have an admission and therefore the basis for a criminal act," Turley notes. "It gives motive and criminal context for the other theories of obstruction and subornation."

In developing their response to the expected obstruction evidence, the president's lawyers have built upon a major discrepancy about the return of the gifts reported between the grand jury testimony from Lewinsky and that of Betty Currie, the president's personal secretary. Currie has reportedly testified that Lewinsky called her and asked her to come by Lewinsky's Watergate apartment to retrieve a package. Lewinsky has reportedly told Starr's investigators that Currie appeared uninvited at her apartment to collect the gifts after Lewinsky and Clinton had discussed the subpoena Lewinsky had received from Jones' lawyers. In that conversation, it has been widely reported, Clinton told Lewinsky words to the effect of "You don't have to turn over anything you don't have."

While acknowledging that Clinton and Lewinsky discussed the subpoena for the gifts, the president's legal advisers flatly deny that Clinton ever made any such suggestion to her. Clinton's lawyers plan to argue that the president, who gives gifts to many people, never regarded the mementos he gave Lewinsky as proof of an illicit relationship that needed to remain hidden, legal advisers told Salon. To strengthen this argument, Clinton's lawyers will claim that even after the gifts were subpoenaed, Clinton gave Lewinsky other presents.

The president's lawyers also will claim that Clinton did not know that Lewinsky turned over the gifts to Currie until he read about it in the newspaper. Clinton also will claim that he never gave Currie instructions to collect the gifts from Lewinsky or coached her on what to say to Starr's grand jury. As further proof of Clinton's honorable intentions, his lawyers will point out that once the gifts were subpoenaed, they were never destroyed, these advisers say.

Moreover, Salon has learned, Clinton lawyers are now preparing to argue that Lewinsky, on her own, returned the gifts to the president's secretary before Lewinsky even received the subpoena for the gifts from Jones' attorneys on Dec. 19 last year.

"My understanding is that Monica called Betty up out of the blue and asked if she could keep some things for her, and Betty agreed to do so," a lawyer familiar with the president's defense strategy told Salon. "Betty stops by Monica's on her way home from work. Monica comes down with a gift box, on the outside of which is written, 'Do not destroy,' or something like that."

The lawyer stressed this happened before Dec. 15, because on that day Currie received the news that her brother had been killed in an accident and took leave from work until after Christmas.

Resuming his account of Lewinsky's hand-over of the gifts to Currie, the lawyer added: "I don't know what their conversation was, but Betty knows Monica is moving to New York, understands that she's going to safeguard these things for her, takes it home, puts the box under her bed and doesn't open it. The box is opened only when it gets subpoenaed. Monica's lawyers take it and produce everything that's in the box."

Asked to explain the discrepancy between this version of events and Lewinsky's reported account, the lawyer said: "I'm not saying anybody acted in bad faith, but two people can understand a conversation, recall a conversation, differently. I think that's what may be at work here." Translation: Clinton's and Currie's word against Lewinsky's.

As much as he'd like to, Zeldin, the former independent counsel, doesn't buy it. "If his defense to the gifts is that he never intended to obstruct justice, it's laughable," he says. "As a prosecutor, I would say, 'Right, you've lied about the relationship, and now you've got a motive to cover up that lie. That motive now manifests itself by your having a conversation with the only other person in the world who could possibly disprove the lie that you didn't have an affair. You're engaging in a conversation with her, in which you're posing hypotheticals that deal with the question of whether she has to give over evidence that may corroborate the relationship, and you're telling us that you didn't have that intent? Then I would make an exasperated, disbelieving face that the jury can't miss and I'd sit down. Then I'd let him get up and explain why he's not lying about this as well. Very difficult."

Zeldin also terms as "ridiculous" the claim by Clinton's lawyers that only the destruction of the gifts qualifies as obstruction of justice. And as for the president's insistence that he never asked anyone to lie, Zeldin recites a piece of advice from Earl Long, the famously elusive governor of Louisiana: "Don't write anything you can phone; don't phone anything you can talk face-to-face; don't talk face-to-face anything you can smile; don't smile anything you can wink, and don't wink anything you can nod."

"It doesn't happen very often that people write down, 'Remember to tell Monica Lewinsky and Betty Currie to obstruct justice,'" Zeldin said. "Much more frequently, it's done with winks and nods. As I try to be neutral and detached, yet as supportive of the president as I can be, I don't have an easy explanation or even a rationalized answer for how the return of the gifts came to pass," he said. "But frankly, the president's defense defies common sense."

Rosen goes even further. Referring to the claim that Lewinsky returned the gifts before she received her subpoena from Jones' lawyers, he says: "That makes no sense at all. Regardless of whether Monica contacted Betty Currie, or whether Betty Currie just showed up at Monica's door, why on earth would Monica have any interest in returning the gifts and saying, 'Do not Destroy' before she was served with a subpoena? It's an absurd story. It's like the 18-minute gap [in the Nixon Watergate tapes]. No one is going to buy that."

Legal experts say Clinton's defense team also may have a hard time convincing Congress that he didn't abuse the power of his office in fighting Starr's investigation. Calling the abuse-of-power charge "vaporous," one of the president's lawyers told Salon that he cannot see how "defending the White House from overbroad and invasive subpoenas and going to court and legally litigating executive and attorney-client privileges can possibly be an abuse of power."

It can become abuse of power, however, if Starr can present strong evidence that Clinton perjured himself when he said he never had sexual relations with Lewinsky and then used official resources -- White House lawyers, aides and taxpayer money -- to interfere with Starr's investigation, dragging it out for seven months. Once again, legal experts say, Clinton's admission of an inappropriate relationship with Lewinsky undermines his defense.

"When there is compelling evidence of crimes against a president, those allegations tend to carry collateral charges like abuse of office," says Turley. "If Clinton can defeat substantive charges of perjury and obstruction, it's unlikely he will be in serious jeopardy for abuse of power. But if any central charges can be proved, abuse of office charges tend to have more traction. It all depends on the mood in Congress," which will weigh Starr's report and decide whether Clinton should be impeached and on what charges.

On Capitol Hill, with midterm elections only nine weeks away, the mood is about as dark as it gets. Last week's speech on the floor of the Senate by Sen. Joseph Lieberman, in which the Connecticut Democrat flayed Clinton for his "immoral" behavior, prompted other prominent Democrats to publicly distance themselves from Clinton. Maryland's Democratic Gov. Parris Glendening announced he had canceled a fund-raiser with Clinton on Oct. 2. Moynihan told ABC's "This Week" that the country should not fear Clinton's impeachment.

But even amid such angry political currents, Starr's report and Clinton's defense still will be viewed through a legal prism. "The judiciary committee, composed of lawyers, will look at this as a threshold matter in legal terms," says Zeldin. "The question will be: Does the president's conduct violate the criminal laws of the United States, or is it so close to violating the criminal laws as to corrupt the office of the presidency?"

By Jonathan Broder

Jonathan Broder is Salon's Washington correspondent.

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