WASHINGTON -- A fundamental shift has taken place in President Clinton's defense strategy, with his lawyers now arguing that even if he did commit perjury in lying about his sexual affair with Monica Lewinsky, it is still not enough to warrant impeachment.
White House Counsel Charles Ruff unveiled this new legal argument on NBC's "Meet the Press" Sunday, only two days after independent counsel Kenneth Starr's sexually detailed and damning report to Congress was released to the American people. "Whatever the president did or whatever the president said, whether it be in January or in August, there simply is no basis for removing the president from office, and that is the key question here," he said.
One lawyer who was involved in the strategy shift told Salon that, in the face of overwhelming evidence in Starr's report that Clinton and Lewinsky had a relationship involving oral sex and mutual fondling, the president's earlier claims that he didn't have a sexual relationship with her were "too legalistic and unbelievable to work." Ultimately, this attorney said, such arguments would hurt the president in his campaign to avoid impeachment.
"I think there's a strong belief that we've got to get out of legalisms and we've got to get out of the attack mode," said the Clinton attorney, who spoke on condition of anonymity. "Unfortunately, lawyers tend to think like lawyers, and we're not in a courtroom. In a court, you can win with a technical legal defense and be acquitted, but not in this process. People just aren't going to react the same way to legalistic arguments. We've got to pick up on what the president is saying, which is 'I messed up. Forgive me' -- not 'I really didn't mess up because you'll never prove it because of some technical defense.' That's not going to wash with the Democrats on Capitol Hill, and it's not going to wash with the American people."
The shift in strategy came as Rep. Henry Hyde, chairman of the House Judiciary Committee, the congressional panel that will take up Clinton's case, announced that he believed impeachment hearings were now warranted. Hyde told the Associated Press he still must sound out the other members of the committee, but in view of the strong ideological posture of its majority Republican members, there seemed little doubt that hearings would happen.
The change in strategy also occurred as public opinion surveys showed that despite the Lewinsky scandal, support for Clinton still remains high. Clinton's political and legal strategists hope those numbers remain steady so Congress will have to think twice before impeaching the president.
Among White House political advisors, there is also recognition that Clinton will have to suffer some form of penalty for his offenses, and talk has been revived of accepting a congressional motion of censure. Former Clinton advisor George Stephanopoulos, speaking Sunday on ABC's "This Week," suggested Clinton eventually may have to admit to perjury in order to secure a "plea bargain," under which Congress would agree to censure the president instead of impeaching him. Until now, there have been no indications from Republicans that they would be willing to let the president off with a censure vote. For now, Republicans are stressing the need for Clinton to admit perjury and consider resignation before the impeachment process begins.
"I think he has got to come to terms with the seriousness of this matter and decide what he can do to help all of us get through it," Senate Majority Leader Trent Lott told Fox News Sunday.
One of Clinton's lawyers also held out the possibility of a perjury admission, but he said, "The time isn't right yet." For now, he said, Clinton's legal strategy will avoid "quibbling about legalities" and focus on the theme that the president's offenses, as regrettable as they were, are still not enough to warrant impeachment.
The push for a less legalistic approach to Clinton's problems emerged in a series of emergency strategy sessions Friday and Saturday at the White House where Clinton's legal and political advisors met to discuss how to respond on a number of fronts to Starr's report to Congress on the Lewinsky affair. The report, which was posted on the Internet last Friday, cites "substantial and credible" evidence that Clinton perjured himself, obstructed justice, tampered with witnesses and abused his power in trying to hide his 18-month relationship with Lewinsky.
On Saturday, in a 42-page response to the Starr Report, Kendall went on the offensive, attacking the report as "a hit-and-run smear campaign," laden with "pornographic" details meant to embarrass Clinton but so weak legally that it could not withstand the scrutiny of a jury.
Yet despite Kendall's return salvo, some of Clinton's lawyers privately admit that the president is most vulnerable to charges of perjury. Clinton's legal exposure stems in part from his Jan. 17 deposition in the Paula Jones civil sexual misconduct suit, in which he swore under oath that he did not have sexual relations with Lewinsky. Clinton based his answer on a definition of sexual relations put forward by Jones' lawyers, which spoke of "contact with the genitalia, anus, groin, breast, inner thigh or buttocks of any person with an intent to arouse or gratify the sexual desire of any person."
In his Aug. 17 appearance before Starr's grand jury, Clinton admitted to having "inappropriate intimate contact" with Lewinsky, but he insisted his denial of a sexual relationship with her was "legally accurate," based on the earlier definition of sex. Starr's report to Congress, which contains Lewinsky's descriptions of 10 encounters in which she performed oral sex on Clinton, argues that oral sex falls within the definition of sexual relations and that the president therefore lied.
Responding to Starr's argument, Kendall wrote that "it is, however, the President's good faith and reasonable interpretation that oral sex was outside the special definition of sexual relations provided to him." Kendall also argues that "dictionary definitions of sexual relations support the president's interpretations." He goes on to note that "literally true statements cannot be the basis for a perjury prosecution even if a witness intends to mislead a questioner. Likewise, answers to inherently ambiguous questions cannot constitute perjury. And, normally, a perjury prosecution may not rest on the testimony of a single witness."
Expressing his concern about this legalistic approach, another lawyer involved in Clinton's defense said the president's legal team was losing sight of the fact that Clinton's explanations must convince Congress and the American people, who will be the ones to decide whether he can survive this scandal. And any argument that asks this audience to accept that oral sex is not sex is doomed, he said. "Try that on your wife," the lawyer dared.
Meanwhile, in another sign of White House concern, some of the president's political advisors are counseling hard-core Clinton loyalists against making further veiled threats against the president's political enemies. These advisors believe tactics like invoking the specter of a "Doomsday scenario," in which any move to impeach Clinton over his sexual indiscretions with Lewinsky will result in the inevitable media exposure of similar sexual indiscretions by Republicans, are sending a mixed message that also will undermine the president's prospects for survival.
"On one side of the split screen, you've got Clinton calling himself a sinner, apologizing and asking for the country's forgiveness, and on the other side of the screen, you've got people allied with the president who are warning that anybody who goes down the path toward impeachment may get wasted himself. That's not a good message," one Clinton associate told Salon. Asked to sum up the message, the associate thought for a moment and then replied: "Forgive me or else."
Even though media scrutiny of the private lives of Clinton's critics has produced admissions of extramarital affairs by Republican Reps. Dan Burton of Indiana and Helen Chenoweth of Idaho, senior White House aides Paul Begala, Rahm Emmanuel and Lanny Breuer are said to believe that any further White House revelations of sexual improprieties by Republicans will be seen as vindictive and will boomerang on Clinton's bid for survival. Last week, Begala and Breuer warned one hard-core loyalist to "cool his jets," a White House source said.
Whether those loyalists listen is another question. "There is definitely more and more of a split" in the White House, this source said. "Those who are motivated by their hatred of Starr have an any-means-necessary attitude. And then there are those who look at all the lying and say, 'Maybe we're going too far here. This is all getting too disgusting.'"