First lady to testify on Whitewater Appearance before federal grand jury is set for Friday

'This is uncharted territory'

Subpoena is likely to embolden foes in Congress

January 23, 1996|By Susan Baer | Susan Baer,SUN NATIONAL STAFF Sun staff writers Carl Cannon and Lyle Denniston contributed to this article.

WASHINGTON -- In a move that raises the political stakes of the Whitewater controversy to extraordinary heights, Hillary Rodham Clinton has been ordered to testify before a federal grand jury here and will do so Friday.

The panel is examining the mysterious appearance, and the content, of Mrs. Clinton's law firm billing records that were discovered in the White House residence earlier this month.

The documents, previously said to have been missing by White House officials, had been under subpoena by investigators for two years.

The testimony she is to provide Friday, ordered by the Whitewater independent counsel, Kenneth W. Starr, would mark the first time in U.S. history that a first lady has been compelled to testify before a grand jury.

Three times previously Mrs. Clinton had answered questions under oath from the independent counsel for the grand jury. But in those instances, she was questioned at the White House.

A grand jury proceeding is a potentially more hostile situation since Mrs. Clinton will face a prosecutor as well as 23 grand jurors who may also grill her, all without the benefit of her lawyer's presence. Grand jury deliberations are closed.

"Nothing has happened like this in the history of first ladies," said Lewis Gould, a professor at the University of Texas and a historian who has written extensively about first ladies. "Everything that happens now will be precedent-shattering. This is uncharted territory."

The subpoena is sure to embolden Republicans, who yesterday sought to extend their Senate Whitewater hearings well into the presidential election season, and is a further embarrassment to the Clinton administration, which has been fighting Whitewater charges since the 1992 campaign.

The White House, in a statement, said staff members and Mrs. Clinton's personal lawyer, David Kendall, also were subpoenaed Mr. Starr, a Republican, and will testify.

"As the first lady has always said, she is as eager as anyone to resolve questions regarding the billing records, and she will continue to provide whatever help she can finally to resolve these issues," the statement said. "Friday's testimony will offer the first lady the opportunity to tell the independent counsel what she knows about these matters."

The statement said that Mr. Kendall received the subpoena Friday, and that on Sunday and yesterday, he and White House lawyers arranged the details of Mrs. Clinton's appearance with the independent counsel's staff.

White House attorney Mark Fabiani said of the first lady, "She's cooperated in the past and she's going to continue to cooperate. Her view is that eventually it will be over."

He said the others subpoenaed include Jane Sherburne, special counsel to the president; Capricia Marshall, executive assistant to the first lady; Gary Walters, head usher at the White House; Mr. Kendall and another lawyer at his firm, Nicole Seligman.

Records in question

Both President Clinton and Mrs. Clinton have insisted recently that they have no idea how the billing records suddenly materialized in the White House residence.

White House aide Carolyn Huber, testifying before the Senate Whitewater Committee last week, said she found the documents in August in the "book room" next to Mrs. Clinton's office. Not realizing what they were, she said, she packed them in a box that she moved to her office.

She said that earlier this month, upon unpacking the box, she found the documents and realized they were Mrs. Clinton's billing records from the Rose Law Firm that had long been sought by the independent counsel as well as Senate investigators.

She said she did not know who put the records on a table in the book room, but "someone did."

The Clintons have insisted that the records corroborate Mrs. Clinton's previous statements that she did "minimal" legal work for the failed Arkansas savings and loan that is at the heart of the Whitewater affair. But Republicans say the opposite. They maintain that the 60 hours of work Mrs. Clinton did over a 15-month period suggest she was far more involved than she has let on.

Few legal defenses

Lawyers consulted yesterday said that no president or first lady has ever before been subpoenaed to testify in a grand jury proceeding. They said they knew of no legal defenses that Mrs. Clinton could try to invoke to avoid appearing before the panel.

The first lady gets no legal immunity, as her husband might try to claim, because she derives from him none of the legal privileges associated with the office of the president.

The only defense she can make to try to avoid answering questions, once in the grand jury room, is her Fifth Amendment privilege not to give criminal evidence against herself.

Earlier yesterday, with the Senate Whitewater Committee increasingly focusing on Mrs. Clinton and her work for Madison Guaranty Savings and Loan, the first lady offered to answer questions in writing for the committee.

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