Clinton, lawyers step up counter-attack Rebuttal takes form of apologies, politicking and deft legal argument

The Starr Report

September 12, 1998|By Ellen Gamerman | Ellen Gamerman,SUN NATIONAL STAFF

WASHINGTON SUN NATIONAL STAFF WRITER MARK MATTHEWS CONTRIBUTED TO THIS ARTICLE. — WASHINGTON -- It was all fronts of a defense in a single day.

From morning to evening, President Clinton and his legal team demonstrated every method of counter-attack in the most perilous battle of his presidency.

It began at a prayer breakfast, with Clinton's lip-biting show of contrition and a single dramatic tear.

Then came the midday legal counter-attack, voiced by Clinton's lawyers in a 73-page rebuttal using finely calibrated logic. Later, those lawyers asserted before the cameras that independent counsel Kenneth W. Starr was simply trying to embarrass the president with his report.

And finally, at dusk, a presidential address at an Irish-American community gathering, with Clinton charming an incongruously jubilant crowd, using his folksy good humor and signature optimism.

After the lurid details of Starr's report, Clinton's defense has emerged as a combination of expansive apologies, political stage management and deft lawyerly argument. But the president's allies, including his lawyers, recognize that Clinton's fate ultimately will be decided not through courtroom arguments but through political and public persuasion.

Yesterday, however, was dominated by the evolving legal defense, which Clinton promised early in the day would be "vigorous." And it was. First, Clinton's private lawyer, David E. Kendall, and the White House counsel, Charles F. C. Ruff, outlined in their written rebuttal a rigid definition for the "high crimes and misdemeanors" that merit impeachment -- a definition that essentially rules out all transgressions short of acts such as treason.

In writing, Clinton's team does not dwell on apologies. The rebuttal instead rejects the most serious accusations by the independent counsel: that Clinton committed perjury, obstructed justice, tampered with witnesses and abused the power of his office.

Legal argument

While Clinton told the audience at the emotional prayer breakfast in the White House that "legal language must not obscure the fact that I have done wrong," there could be no language more legal than the words his lawyers used to define perjury.

In its rebuttal, Clinton's legal team insisted that -- despite the graphic details of the Starr report -- the president's testimony about his relationship with Lewinsky in the Paula Corbin Jones case and to a federal grand jury did not constitute perjury. Noting that a literally truthful answer that implies a lie is not the same thing as a lie, the Clinton lawyers argue that testimony that is "fundamentally ambiguous cannot, as a matter of law, be perjurious."

Legal experts say the White House is defending what his lawyers say are Clinton's technical truths to prove a point: This sort of perjury is not as dangerous or ultimately as harmful to the country as the lies that led the House Judiciary Committee to approve articles of impeachment against President Richard M. Nixon in 1974.

"You have to get House members thinking in terms other than, 'He lied, therefore he should be impeached,' " said Glenn Ivey, a former lawyer for Senate Democrats during the Whitewater hearings who now teaches law at the University of Maryland. "I think the White House needs to get them to recognize that the bar needs to be higher than that."

As the House considers whether to move on with impeachment proceedings, Clinton's lawyers argue that Watergate was worlds apart from, and ultimately far more dangerous than the Starr allegations.

The Clinton rebuttal document was completed in a hasty all-night session after Republicans refused to deliver the Starr report to the White House even a few minutes ahead of releasing it publicly. But it is hardly a slapdash document -- it anticipates every variety of Starr attack and is peppered with barbs directed at the independent counsel.

When Clinton's lawyers write that Starr was seeking the truth, they put that word in quotation marks. The rebuttal describes Starr's investigation as "amorphous, languorous, expensive and seemingly interminable." The lawyers contend that Starr's team left no stone unturned -- "or (we believe) unthrown" -- in the investigation.

The rebuttal goes on to accuse Starr of manipulating the timing of the investigation to trap the president and illegally broaden the reach of the independent counsel's inquiry, beyond the Whitewater land deal -- and beyond the Jones sexual misconduct case.

His lawyers' legal arguments aside, Clinton can do little to soften the impact of the salacious details in the report that are likely to embarrass or even disgust the public. Even so, Clinton's lawyers do take on some of the less graphic accusations by Starr with some details of their own.

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