Technical defense might lose in court Lawyers' hair-splitting is risky for president, legal experts say

September 15, 1998|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Seldom have highly skilled and well-paid lawyers seen their work so thoroughly trashed before the whole country. And yet, President Clinton's attorneys persist in their chosen line of defense.

There are reasons for that, but even the reasons are drawing sharp criticism.

In two long documents and several rounds of television appearances, the president's lawyers have mounted a give-no-quarter defense in the face of independent counsel Kenneth W. Starr's accusations of lying, obstruction of justice, witness tampering and abuse of power.

The ingredients of that defense -- sometimes highly technical explanations of why the lawyers insist that Clinton's testimony under oath was "legally accurate," that he broke no laws and that he should not be impeached -- have been roundly attacked from the moment they became public.

Much of the criticism has been aimed at the semantic argument that Clinton's denial of "sexual relations" with former White House intern Monica Lewinsky was not perjury because he understood that phrase to mean something different from oral sex.

The top two Democrats in Congress joined yesterday in what is becoming a rigorous and bipartisan complaint about the continued White House reliance upon that kind of semantic argument.

The continuing criticism, and its spread to the Democratic leadership, prompted a new response from the White House, with presidential spokesman Jim Kennedy saying that "the president has made clear that he does not want the work of his lawyers to get in the way of his admission that he had an improper relationship and he misled people to keep it private."

While Kennedy added that "no legalisms should obscure the fact that it was wrong, he [Clinton] apologized for it and he has asked for forgiveness," the spokesman gave no hint that the White House legal strategy is changing.

"The presidents' lawyers have said, and many independent observers agree, that Mr. Starr's allegations would not support a case of perjury in a court of law," Kennedy said.

Democrats speak plainly

The new advice from key figures within the president's party was muted compared to other criticisms, but it, too, was clear.

"The president and his advisers must accept that continued legal jousting serves no constructive purpose," said Senate Minority Leader Tom Daschle of South Dakota. "It simply stands in the way of what we need to do: move forward and let common sense guide us in doing what is best for the country."

Added House Democratic Leader Richard A. Gephardt of Missouri: "The considered judgment of the American people is not going to rise or fall on the fine distinctions of a legal argument but on straight talk and the truth. It is time for the president and the Congress to follow that common sense for the good of the country."

Other critics have not hesitated to lambaste the Clinton defense. Senate Judiciary Committee Chairman Orrin G. Hatch, a Utah Republican, took to the national stage of a Sunday TV talk show to tell Clinton and his team: "Quit splitting legal hairs." Clinton, he added, "ought to get rid of this legalism stuff. That was ridiculous. Nobody believes that."

Even would-be Clinton defenders are speaking harshly.

Rep. Barney Frank, an often-sympathetic Democrat from Massachusetts, said: "Everybody sees through it. [Clinton] is not 14 anymore, trying to outsmart the principal. I wish he would stop it."

The criticism is not confined to politicians who want something more straightforward from Clinton. Harvard law professor Laurence H. Tribe termed the defense "politically unproductive" and not successful from a legal point of view.

Using "legal hair-splitting," Tribe said, "suggests that they are not as good at lawyering as they ought to be." What is needed, with impeachment the most pressing issue, he said, is for Clinton to speak at a higher level about his misconduct, rather than confessing guilt -- in other words, admitting that splitting hairs in the Paula Corbin Jones misconduct lawsuit and before the Starr grand jury was misguided.

Legal justifications

As legal analysts pore over the Clinton lawyers' approach, they identify at least four justifications that moved the Clinton team to fashion their defense:

The most immediate need: Mount some kind of defense without knowing all of what Starr has gathered, as a way of buying time until the attorneys see all of the undisclosed evidence and then fashion a defense to all of it.

The short-term need: Avoid an admission of lying that could be taken as a confession of perjury that would, in the eyes of some members of Congress, itself be an impeachable offense.

A longer-term need: Avoid admissions that would lead the judge in the Jones case to hold Clinton in contempt of court or to revive Jones' now-dismissed lawsuit.

And the longest-term need: Avoid what could be interpreted as a guilty plea in advance, should Clinton face criminal charges after leaving office for wrongs alleged in Starr's report.

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