February 16, 1998|By CARL M. CANNON | CARL M. CANNON,SUN STAFF
WASHINGTON - Defending President Clinton in the Monica Lewinsky investigation, the White House has adopted an aggressive legal strategy designed to ensure that the president and his lawyers are not surprised by any more explosive developments.
To that end, the White House is working with a fraternity of Democratic-allied lawyers who routinely share information with Clinton's lawyers. Clinton's attorneys cannot control the direction of Whitewater independent counsel Kenneth W. Starr's inquiry. What they can do, one White House attorney said, is make sure that when Starr develops new witnesses, Clinton's side knows about them as soon as possible and can help shape public perception of any new testimony.
"It's the vast legal conspiracy," quipped one of the lawyers involved.
Here's how the network operates, according to interviews with White House attorneys.
When a potential witness surfaces, such as a presidential secretary or a witness alleged to have seen Lewinsky and the president together, the White House counsel's office will steer that person to a private lawyer who has a close relationship with one of the principal Clinton attorneys: David E. Kendall, Robert S. Bennett or White House counsel Charles F.C. Ruff.
The lawyer chosen will debrief his new client and then share that information with the president's legal team. Later, when the client appears before the grand jury, the lawyer must wait outside. But, after the client's testimony, the lawyer will again debrief the client on what the special prosecutor had asked about. The lawyer will then relay that information to the Kendall/Bennett/Ruff team.
"That is standard procedure in criminal defense practice," says Jane Sherburne, a Washington lawyer who served in the White House counsel's office at the onset of the Whitewater investigation.
Gilbert K. Davis, one of the former lawyers for Paula Corbin Jones, whose sexual misconduct suit against Clinton gave rise to the Lewinsky furor, agrees. "The reason a lawyer would want to share information if you were on the defense side is, first, so they know what they're facing. Second, it helps them put on a concentrated defense."
Legal scholars and well-known members of the D.C. bar stress that there is nothing unlawful or unethical about the kind of coordination the president's lawyers are engaged in, called a "joint defense agreement." It is increasingly common in white-collar criminal investigations and organized-crime cases.
"Joint defense is very legal, very kosher," said Plato Cacheris, a leading Washington defense lawyer and former federal prosecutor. "It's done all the time."
Prosecutors' fears
Nonetheless, prosecutors are suspicious of such close cooperation among defense attorneys. Typically, the prosecutors fear that testimony from witnesses, particularly subordinates, will be tailored by lawyers who work for other lawyers who represent the witnesses' bosses. That is especially true if the underlings are not paying their own legal fees.
But this is apparently not a primary concern in the Clinton investigation because government ethics rules bar White House aides from receiving free legal assistance. They can, however, negotiate a cut rate or a "cap" on legal fees, which one Clinton lawyer involved in Whitewater said is almost certainly occurring. None of the lawyers for the White House underlings would discuss their fee arrangements.
Instead, Starr's worry, according to two White House-connected lawyers, is that these lawyers are Clinton loyalists who are motivated to keep the investigation from expanding in a way that might jeopardize Clinton.
"The president and his advisers are exercising their First Amendment rights to recommend lawyers to people - and to talk to them about the case as part of their defense," said Jamin Raskin, a professor of constitutional law at American University. "But the president and his lawyers are walking a fine line. The First Amendment does not give them the right to tamper with witnesses or to coordinate false testimony."
Starr appears to have been leery of the lawyers on the other side all along. In 1994, in the early days of the Whitewater inquiry, administration attorneys asked him if he objected to the White House counsel's office representing some of the lower-ranking aides called as witnesses. Starr did object, angering White House lawyers.
"He thought we'd influence testimony, intimidate people," said one White House lawyer. "It really ticked me off."
Playing it by the book, Clinton's lawyers say they notify Starr each time they refer a client to a lawyer in their network, which they have done frequently.
The attorney for the president's personal secretary, Betty Currie, for example, is Lawrence Wechsler, a friend of Bennett's. The two have served as co-counsels on other cases. Gerard Treanor Jr., who represents Clinton's other personal secretary, Nancy Hernreich, has also received referrals from Bennett's law firm.
