Did Starr set a perjury trap? A chain of questionable events brings attention to what Starr knew and when he knew it in the Clinton investigation

November 01, 1998|By Lanny J. Davis

How might American history have been changed had Monica Lewinsky called her attorney, Frank Carter, on Friday, Jan. 16, while she was under questioning by Kenneth W. Starr's prosecutors and FBI investigators? Because of one startling and unreported fact buried in the Starr Report - that Monica Lewinsky's affidavit denying a sexual relationship with the president was not filed with the Jones court until Tuesday, Jan. 20 - we know that the consequences of Lewinsky calling Carter that day would have been huge.

Had Lewinsky made that call, it is reasonable to predict that there would have been no immunity agreement between Lewinsky and Starr, no deposition testimony by President Clinton in the Jones case and, possibly, no House impeachment inquiry.

Focusing on this question helps to explain why Starr was in such a rush to obtain the jurisdictional grant from Janet Reno on Jan. 15 - and why his prosecutors were so eager to persuade Monica Lewinsky not to call her lawyer Jan. 16. The answer: They were in the process of manufacturing a crime that hadn't occurred. If Lewinsky had made that call, the perjury trap set for President Clinton on Jan. 17 would likely have been foiled.

This analysis also leads to the need for further investigation of Starr and his team for prosecutorial misconduct in two respects: First, for misrepresentation to the attorney general in Starr's application for expanded jurisdiction if he suggested that Lewinsky had committed perjury; and second, for using bogus and exaggerated threats to Lewinsky during her Jan. 16 interrogation to pressure her to cooperate.

Lewinsky's lawyer, Carter, told me recently (for the first time on record) that had he received a telephone call from Lewinsky on Jan. 16, he never would have filed the affidavit with the court in the Jones case, and thus, a serious threat of prosecuting Lewinsky for perjury would not have been available to the prosecutors when they questioned her Jan. 16.

A credible perjury prosecution normally requires a false statement about a material fact in a judicial proceeding. A false affidavit in a lawyer's file cabinet that is never filed with the court in a judicial proceeding would not likely result in a perjury prosecution. (Legal nit-pickers might suggest possible perjury for signing a false statement that is notarized. But such a prosecution is almost unheard of, and certainly not where - as here - once the attorney learns that the affidavit is not entirely true, he would undoubtedly take steps to have it effectively recanted.)

It follows, then, that with no likely case of perjury against Lewinsky for an unfiled affidavit, the case for subornation against the president is substantially weakened.

There can hardly be a strong case for subornation of perjury if there was no perjury to suborn.

Also, if Lewinsky had called Carter on Jan. 16, it can be safely assumed (as the prosecutors correctly feared) that he would have immediately called Vernon Jordan, who would have informed the president, who would have informed his attorneys, David Kendall and Robert Bennett.

The result?

Armed with knowledge of these developments, including the existence of the Linda Tripp tapes and Lewinsky's questioning by Starr's prosecutors, Kendall and Bennett would surely have resisted permitting the president to show up for the Jones deposition - at least not without first attempting to subpoena the Tripp tapes and to depose Tripp's and Jones' attorneys about the substance of their nonprivileged conversations on the evening of Jan. 16 concerning Lewinsky and the Starr investigation. One also can safely surmise, to say the least, that Bennett would have reopened efforts to settle the Jones case.

Starr's application to Reno

Starr's application for expanded jurisdiction still has not been publicly released. Curiously, he made no reference to its contents in his 400-plus page referral. Nor did he ask the three-judge panel to send it to the Judiciary Committee along with the hundreds of pages of otherwise secret grand jury testimony.

Recently, his spokesman suggested that Starr did not think it was "relevant" to disclose to the attorney general in his application for expanded jurisdiction that, before his appointment as independent counsel, he had six private conversations with a Paula Jones' attorney and provided him with substantive legal advice on critical legal issues.

Now it looks as if Starr withheld something possibly more important from the attorney general in the same application: That in light of the fact that the Lewinsky affidavit had never been filed, there was no perjury case as yet in existence against Lewinsky (and thus a weak subornation case against the president).

So here are some questions that the House Judiciary Committee should ask Starr concerning these issues:

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