Clinton silence on sex case is called correct tactic One expert feels he's said too much already, likens case to 'shooting gallery'

January 29, 1998|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- If President Clinton has decided to say no more about the sex scandal investigation surrounding him, as Hillary Rodham Clinton indicates he has, it won't be because he is forbidden by law to do so, legal experts say.

But silence is exactly the posture that many criminal defense lawyers would recommend, especially with the president apparently at the center of Whitewater independent prosecutor Kenneth W. Starr's widened probe.

Other legal specialists, however, say the usual custom of silence by the client should not apply when the target of a criminal investigation is the president of the United States.

The first lady, in a television interview yesterday, implied that the rules of criminal investigations have forced the president to withhold further comment or explanation.

She said on ABC-TV: "Because there's an investigation going on, nobody can expect the president to say anything more publicly. You won't hear any more from my husband" because of "the rules" required by investigations. "If there weren't an investigation, he could," she added.

Mrs. Clinton, who is a lawyer, did not say what rules the president was obeying.

Paul Marcus, a professor of criminal law at the College of William and Mary, commented: "What rules is she thinking about? She makes it sound like it's official. I've never heard of any such rule."

Marcus said it was the conventional advice of defense lawyers to a client to say nothing about a criminal investigation, because in "the fancy poker game" that plays out in a criminal case, "you do not tip your hand until you know what the other side has."

But, the professor said, in Clinton's present situation, "I would not give the president that advice. This has gone beyond the stage of the traditional advice. There are very serious questions about the conduct of the presidency, and the president should come clean on that."

Jane Kirtley, an attorney who is executive director of the Reporters Committee for Freedom of the Press and who closely follows issues about criminal case publicity, said she could not imagine what rules Mrs. Clinton was citing.

"There isn't a free-standing order not to talk" in federal or state cases, Kirtley said. "That's why courts enter gag orders" in certain sensitive cases, to fill in the gap and limit pretrial publicity, she said.

She did note that the president must obey one specific gag order, issued in the Paula Corbin Jones sexual misconduct case, but that would not apply to Starr's investigation.

The Jones gag order, one of unusual breadth, forbids all parties, and their "agents" and "spokespersons" from discussing any aspect of the pretrial evidence-gathering phase of the Jones lawsuit. Mrs. Clinton did cite that order as the reason she could not discuss what Clinton had said under oath in a recent deposition in that case.

A conservative legal advocacy group, Judicial Watch Inc., yesterday asked the judge in the Jones case to relax the secrecy order, to allow Clinton's deposition to be made public. That deposition reportedly has been turned over to Starr's investigators.

Ephraim Margolin, a prominent San Francisco criminal defense lawyer, agreed that "there are no rules I know of that would prohibit him [Clinton] from talking further."

But, he added, client silence "is the rule of the [legal] profession. I can't think of a lawyer who will tell him otherwise."

Margolin said that is a matter of strategy. "When you have no idea what the other side has, anything you say will be taken by investigators who will make holes in it."

Differing with the advice that William and Mary Professor Marcus would give Clinton, Margolin said that with prosecutor Starr "constantly lying in wait, I would never have allowed him [the president] to speak up."

In fact, he added, the public statements the president already has made "went beyond what I would be comfortable with" if he were Clinton's lawyer.

In the midst of a criminal investigation, he said, the president is "in a shooting gallery" and he is the target.

The Justice Department has guidelines for prosecutors that forbid them to discuss pending investigations, and Attorney General Janet Reno herself follows that restriction without exception.

She tightened those guidelines in 1996, to bar public discussion of any evidence obtained by a search or arrest warrant. But those guidelines do not apply to the targets of investigations.

A Supreme Court decision in 1990 said that a witness who appears before a secret grand jury has a constitutional right to disclose "information of which he was in possession before he testified before the grand jury" -- even if that information is what that witness told the grand jury.

Even if Clinton were summoned to give evidence under oath to Starr, he would be free to discuss publicly what he knew about his own conduct.

The court noted in the 1990 case that the federal court rules mandating grand jury secrecy expressly exempt a witness from the obligation of secrecy. It also said that 35 of the states do so, too.

Pub Date: 1/29/98

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