That wasn't foreplay, that was a four-poster!

A renowned defense lawyer talks about some of the weird arguments the president's lawyers may make if it comes to cross-examination.


Lori Leibovich
January 9, 1999 1:00AM (UTC)

In a closed-door meeting Friday, the Senate decided that opening arguments in impeachment proceedings against President Clinton will begin Thursday. What hasn't been decided is the question on everyone's mind -- will witnesses be called to testify?

That decision won't be reached until after both sides have made opening statements and there is questioning by senators. But what if witnesses do appear? How will Clinton's lawyers unleash a vigorous defense without seeming like bullies? How will lawyers and senators finesse asking sexually explicit questions without seeming crass?

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Criminal defense attorneys face these kinds of tricky questions every time they go into court. Just ask Ronald Kuby. A longtime associate of the late radical lawyer William Kunstler, Kuby has defended such notorious clients as Long Island Railroad killer Colin Ferguson, World Trade Center bomber Sheikh Omar Abdel Rahman and Malcolm X's daughter Quibilah Shabbazz, accused of plotting to kill Louis Farrakhan. Salon talked with Kuby about why the president should have settled with Paula Jones, what a Senate trial might look like and how he would question Monica Lewinsky.

A senate impeachment trial has begun and the president's attorneys will have to defend him. How would you evaluate his attorneys so far?

Part of the difficulty with this is that the president either got bad legal advice early on, or he got good legal advice that he refused to take. What he should have done from the outset is settle with Paula Jones. Had he settled with Paula Jones there would have been no deposition about Monica Lewinsky, no lie at the deposition, no Starr investigation, no lie to the Starr grand jury, no impeachment and no trial.

That's easy to say now. But then it seemed politically impossible to settle.

My experience is that frequently it is a good idea to settle the case early, to get out of it and move on. Especially since people who know Clinton knew the guy has a real problem keeping his hands off women. I tell my clients, "Look, do you really want to sit there and answer questions about every drug you've ever taken, every man, woman or frozen vegetable you may have had sex with?" My advice from the beginning would have been to settle.

What is your advice now?

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I think his lawyers are trying to do the right thing now. They don't want witnesses. They want to say, "We agreed that all these witnesses testified to what they testified to. The real question is whether these acts are grounds for impeachment. Let's just have a vote on that, pretty please?"

Sounds good, but it isn't going to happen.

Right. It's hard to script out a defense. If the House goes ahead, as they intend to do, and calls Monica Lewinsky, then the president and his lawyers have a real problem. In the first article of impeachment, the primary question is whether or not President Clinton touched, kissed, fondled or caressed Monica Lewinsky's breast or breasts while she was performing oral sex on him. She said he did, and he said he never did, and he testified to this under oath to the Starr grand jury. That poses a terribly difficult problem for the defense, because if she gets up there and reiterates her statement under oath, and appears to be credible, what you're left with is cross-examination.


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Let's do a role play. How would you question Monica Lewinsky if you were the president's attorney?

You would have to suggest that she was not in a position to observe the president's hand while she was fellating him. Well, that's probably true -- her eyes were presumably elsewhere. Maybe she could have mistaken a moving piece of furniture for a hand?

You're joking. You would suggest that?

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The line of cross-examination would be something like this:

Lawyer: Miss Lewinsky, isn't it true that when you claim the president touched your breast, you did not actually see his hands?

Lewinsky: Yes, I didn't see them, but I felt them.

Lawyer: You didn't see them, because your eyes were focused elsewhere, isn't that right?

Lewinsky: Yes, that's right.

Lawyer: In fact your eyes were focused on Mr. Clinton's groin.

Lewinsky: Yes, they were and occasionally I looked up into his eyes.

Lawyer: You didn't see his hands. Is it fair to say you felt something touch your breasts and to you it felt like a hand?

Lewinsky: Yes, it did.

Lawyer: In truth, since you didn't see it, couldn't it just as easily have been a chair, a piece of furniture or something else?

Lewinsky: Well, no. To me it felt like a hand.

Lawyer: But you wanted his hand to be on your breast.

Lewinsky: Yes, I did.

Lawyer: In fact -- you said that you loved him.

Lewinsky: Yes, I did.

Lawyer: You wanted to reciprocate the affections that were being bestowed upon him by you.

Lewinsky: Yes, I did.

Lawyer: In fact, at one point you talked about marrying him, isn't that right?

Lewinsky: Yes, that's right.

Lawyer: So you desperately wanted him to be engaging in reciprocal sex?

Lewinsky: Yes, I did.

Lawyer: No further questions.

With that, a lawyer has possibly, if not probably, cast a real doubt on whether or not the president's hands have caressed the ample breasts of the intern. But the lawyer has also made himself and his client out to be a total louse. It's -- excuse the pun -- a touchy situation for a defense lawyer.

How would you question other potential witnesses, such as Vernon Jordan?

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Well, the others are a lot easier because they are friendly to the president. Vernon Jordan adamantly denies he promised Monica Lewinsky a job for her silence. And Bettie Currie adamantly denies the president told her to get the gifts when he knew he was going to be subpoenaed. Those witnesses are easy. Monica Lewinsky poses tremendous dangers to both the defense and the prosecution. A lot of people on both sides of the aisle originally wanted to not call her at all.

Won't questioning Monica Lewinsky in such graphic detail make the lawyers look bad?

The truth is, in courtrooms large and small around America you have rape trials, sexual harassment trials and sexual abuse trials where the testimony is often quite graphic -- "When were you touched? Where were you touched? Was there ejaculation? Was there penetration?" You need to get specific. But when you cross-examine someone like Monica Lewinsky, that specificity can backfire on the defense counsel. Trials are not plays. You can't see the script in advance and make changes and corrections. You have to gauge if she is credible, is she sympathetic, is she believable, is this the kind of testimony on which the Senate of the United States would vote to impeach a president? If the answer is yes, you have to cross-examine her. If the answer is no, then you don't.

So if you could give one piece of advice to the president's lawyers, what would it be?

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Don't act like a bully. The president -- although he frequently forgets this -- must remember that he is the president of the United States. And as such, is a figure who is perceived -- correctly -- to wield great power. He can blow up the world, for example. To have him and his lawyers beating up on witnesses is a very dangerous thing to do. At the end of the day the ultimate argument is going to be that these statements were false statements about private sexual conduct and they don't constitute impeachable offenses.


Lori Leibovich

Lori Leibovich is a contributing editor at Salon and the former editor of the Life section.

MORE FROM Lori Leibovich

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