President not an ideal witness, some lawyers say Others who viewed videotape say his actions may not have hurt his case

The Clinton Investigation

September 22, 1998|By Kate Shatzkin | Kate Shatzkin,SUN STAFF

He moved his hands too much. He answered the questions he wanted to answer -- not necessarily the ones that were asked. At times, he let his nerves show.

In short, Bill Clinton was no star witness for himself in four hours of grand jury testimony -- going against the standard advice many lawyers would have given him to be brief, seem helpful and direct, and try not to control the discussion.

But some attorneys interviewed yesterday about Clinton's performance under oath said it didn't matter -- that the president's articulate speech, poise and charm overcame his rambling answers, flashes of anger and splitting of legal hairs.

"Lawyers are the worst witnesses and the worst clients," said Baltimore lawyer Andrew Radding, a former federal prosecutor who has defended fellow members of the bar.

"I thought at the very beginning he looked like a little boy. I thought he was extremely nervous. I think as he saw he could control the nature of the questions, he got more relaxed. He talked too much on many answers. But I don't think he hurt himself necessarily."

Trial lawyers interviewed yesterday said that the first thing they would have done, had Clinton been their client, was keep him from testifying before the grand jury.

But with the president's appearance assured, the lawyers said they would have given the advice they offer defendants in depositions: No showboating.

"In a deposition, the idea is to remain calm and answer the question," said University of Maryland Law School visiting professor Charles Elson, who teaches corporate law. "He was all over the road."

Said Stephen Gillers, a legal ethics expert and professor at New York University Law School: "I would have told him what I believe [presidential lawyer David E.] Kendall told him: Answer specific questions, don't volunteer, don't think you can get control of this, don't be cute."

Did the president follow such advice? "The president was going to be his own lawyer and try to define the event," Gillers said. "As it turns out, I think he succeeded, by and large."

But Baltimore lawyer Harry S. Johnson, who has prepared many defendants for videotaped depositions, thought Clinton's responses to questions may have led grand jurors and the public to think him evasive.

"One of the classic things lawyers tell clients when deposed is to try to answer questions yes or no, then explain it," Johnson said. "The president is anxious to get his explanation out, whatever that is, but many times he doesn't answer the question yes or no."

Most of the lawyers interviewed said they saw relatively little anger from the president, given that media accounts before the tapes were aired emphasized his combativeness as a witness.

Neal Sonnett, a Miami white-collar defense attorney and former federal prosecutor, said some of the pique Clinton displayed may have helped his political cause, if not his legal one.

"I think it certainly didn't hurt for him to make it clear, knowing this video would likely be viewed by the American people, what he thought about the Jones deposition and the lawsuit and the leaks," Sonnett said.

"Those obviously are not responsive to the questions, but in this circumstance I don't think it hurt him."

But Baltimore criminal defense lawyer Antonio Gioia, who listened to the testimony on the radio, disagreed.

"I thought he certainly, by the displays of anger before the grand jury, broke the cardinal rule under cross examination, which is never to show anger," Gioia said.

"I do believe that, even when he's telling the truth, he creates the appearance of being deceitful by giving incomplete answers," Gioia said. "He sounded a lot more like a politician to me than a witness before the grand jury."

Johnson said Clinton did a good job appearing presidential, but that he should have looked more directly into the camera and refrained from moving around as much as he did.

"He's moving his hands around a lot," said Johnson. "I think whenever you want people to listen to you, you don't want to be waving your hands around.

"Videotaped testimony is always detrimental to the person testifying because they don't have the opportunity to make eye contact with all the jurors. People don't listen to everything that's testified to on videotape."

And the president's outfit, a key question for many defendants? At least one counselor would have recommended a change in neckwear. "I didn't like his tie," said Radding. "I thought it was awful."

Pub Date: 9/22/98

Baltimore Sun Articles
Please note the green-lined linked article text has been applied commercially without any involvement from our newsroom editors, reporters or any other editorial staff.