By Peter Baker and Susan Schmidt
Washington Post Staff Writers
Friday, April 3, 1998; Page A1
Independent counsel Kenneth W. Starr vowed yesterday to continue his aggressive pursuit of alleged misconduct by President Clinton and others related to the Paula Jones sexual harassment lawsuit, asserting that there is "no room for white lies" in sworn testimony even though the underlying case has been thrown out.
In sharp comments clearly aimed at Clinton and former aide Monica S. Lewinsky, Starr gave no ground to critics who contend that his perjury and obstruction-of-justice probe is pointless in the wake of U.S. District Judge Susan Webber Wright's decision Wednesday to dismiss the Jones case. He argued that "our scope is very different" and that the alleged offenses would be serious even if they occurred in a civil case found to be without merit.
"In that civil case, you cannot defile the temple of justice," he said during an impromptu news conference on the front lawn of his McLean home. "You must play by the rules. . . . And if you don't play by those rules, if you lie under oath, if you intimidate a witness, if you seek otherwise to obstruct the process of justice, it doesn't matter who wins and who loses in the civil case. What matters, from the criminal law's perspective, is: Were crimes committed?"
Making his most extensive public comments since the Lewinsky investigation began in January, Starr also defended the pace and cost of his probe and chided the White House for invoking executive privilege to block the questioning of some top presidential aides a legal tactic he complained will drag out the inquiry. His job is not about public relations, Starr said, but about emulating Sgt. Joe Friday from "Dragnet" and seeking "just the facts."
Starr's statements were viewed as a renewed battle cry at the White House even as officials there were still reveling in Wednesday's decision by Wright to call off the Jones lawsuit, which had been scheduled to go to trial next month, because "there are no genuine issues for trial."
Feeling empowered by the political and legal victory, White House officials were eager to strike back at Starr and portray him as a floundering, partisan prosecutor desperately in search of a case. "As the president was vindicated, Starr acted vindictive," said Rahm Emanuel, a senior adviser to Clinton. "I grew up watching 'Dragnet.' . . . Ken Starr is no Joe Friday."
The rhetorical volley masked a more substantive debate about where Starr's investigation goes from here. Prosecutors are looking into whether Clinton lied under oath in the Jones case when he denied having a sexual relationship with Lewinsky, and into whether the president or his friend, Vernon E. Jordan Jr., persuaded her to lie as well. Even with the Jones case deemed groundless, legal experts said, their sworn statements probably were still "material" as defined by the perjury code. Yet as a political matter, the already weak appetite for impeachment proceedings on Capitol Hill seemed to all but disappear, at least for the moment.
"Unless there is an open-and-shut case, the kind which would result in a resignation, as happened with President Nixon, I do not think there ought be an impeachment proceeding," Sen. Arlen Specter (R-Pa.) said yesterday, adding that he did not think "the United States can stand an impeachment proceeding."
House Speaker Newt Gingrich (R-Ga.) even told CNBC that Clinton "has plenty of courage" for weathering a difficult scandal, although he reserved judgment on the ultimate outcome. "When Judge Starr reports, we will know a lot," he said on ABC's "Nightline" last night. "We'll know that Clinton has been exonerated or we'll know there is a huge mass of material. I don't think there will be any in between."
Even before the Jones ruling, there already were different, and often shifting, opinions in Starr's office about how to proceed, particularly with regard to Lewinsky.
Some believe she may ultimately have to be indicted even though that course could delay sending a report to Congress by many months and generate a public furor. That scenario may gain adherents within Starr's office if Congress seems even more reluctant than before to take on the result of the independent counsel probe in light of the Jones case dismissal. Others think prosecutors should bring Lewinsky before the grand jury as soon as possible.
Lewinsky's attorney, William H. Ginsburg, has claimed in court that he has a binding immunity agreement with Starr. A ruling is still pending, but a related decision handed down this week may offer clues to the thinking of Chief U.S. District Judge Norma Holloway Johnson, who supervises the grand jury.
In a sealed proceeding, Johnson ruled Tuesday that Lewinsky's first lawyer, Francis D. Carter, must testify about his conversations with his client as requested by Starr. According to a source familiar with the decision, Johnson concluded that attorney-client privilege did not apply because of evidence that Lewinsky intended to commit a crime when she hired Carter to help draft a Jan. 7 affidavit in the Jones case denying a sexual relationship with Clinton.
Some lawyers close to Starr's office said prosecutors are girding for more criticism of their investigation now that Clinton supporters no longer have the Jones case to distract them. Yet they said there is at least some relief about the Jones decision, since Starr's investigation will no longer be running on a parallel track with the civil lawsuit, making prosecutors less vulnerable to attacks from Clinton partisans for allegedly collaborating with the Jones team.
As Starr pondered his next move, so too did Jones. While her attorneys had predicted an appeal would be almost certain and immediate, she decided yesterday to take a few days to think about it and will wait until next week before deciding. "If it were just up to the lawyers, I think you would have an answer today," said Donovan Campbell Jr., her chief attorney. "But it's not. You have an individual human being client who's going through a lot right now."
Described as "semi-shellshocked" by another attorney, Jones avoided reporters camped outside her seaside apartment in Long Beach, Calif. Besieged by television cameras as she pulled out of the building's parking lot to go to a gym, Jones said merely, "I just want to work out and get a little stress off."
Judge Wright did not decide whether Clinton made a lewd proposition in a Little Rock hotel room seven years ago when he was Arkansas governor and Jones was a low-level state clerk. Instead, Wright found that even if such "boorish and offensive" conduct did occur, it would not constitute sexual harassment under the law.
On his way back from an 11-day tour of Africa, Clinton did not dwell on the niceties, seeing the final result as the most important conclusion. "Obviously, I'm pleased with the decision," Clinton said before embarking on a transatlantic flight that arrived late last night. "I'm very much looking forward to going home and continuing the very ambitious agenda we've got there."
First lady Hillary Rodham Clinton allowed a little more sense of validation into her public remarks. "Both Bill and I have felt throughout this whole thing that it would turn out fine . . . based on the fact that there was no evidence to support these groundless claims," she said in a radio interview.
But the Lewinsky matter, as Starr noted in his remarks to reporters yesterday, is hardly the only issue related to Clinton that he is investigating. For example, Starr has been using a second grand jury in Washington to hear testimony about Clinton friend Webster L. Hubbell, the former associate attorney general, in another investigation in connection with alleged fraud and tax evasion. Starr's office sent Hubbell to prison once already for similar violations.
Yesterday, Starr brought to the Lewinsky grand jury White House Chief of Staff Erskine B. Bowles, who testified last year about whether hush money was arranged for Hubbell. Bowles, accompanied by attorney Earl Silbert a former Watergate prosecutor did not reveal what he was asked during four hours at the courthouse, but gave the impression his testimony mostly concerned White House routines.
"It was an easy time for me," said Bowles, who has had little involvement in the Lewinsky situation. "I answered all their questions wholly and completely. It was not very difficult. They asked me a lot of questions about what went on in the White House."
In his comments yesterday, Starr seemed to be both exhorting his staff to ignore the dismissal of the Jones case and explaining how he tunes out the politics surrounding his investigation of the president. "You will see us sleeping very well at night because we know we are professionals who are doing a job," he said. "Facts and law, that's what we deal with. We don't deal in politics."
Asked to justify the cost and time of his $30 million investigation, Starr said Attorney General Janet Reno and a panel of judges have referred so many matters to him including the original Whitewater land deal that set off his probe, firings in the White House travel office and the suicide of Vincent W. Foster Jr. that his office is doing the work of four or five independent counsels.
But he acknowledged the "very keen and powerful interest in bringing all these matters to resolution as quickly as possible" and said the Little Rock phase of his investigation is reaching a "critical juncture" a reference to the expiration next month of the grand jury hearing evidence there about Hubbell and the Clintons' financial dealings. Starr is expected to wind down much of his Little Rock operation then.
In saying that the Jones dismissal does not affect his case, Starr laid out an uncompromising standard for honesty. "There's no room for white lies," he said. "There's no room for shading. There's only room for truth."
Criminal law experts said Starr was correct as a matter of technical law and wrong as a question of politics and prosectorial tactics. "Legally, he's free to go ahead," said prominent defense attorney Plato Cacheris. But "I think his investigation has taken a big hit politically. If he were to send something up to the Hill, I think a lot of people would now be emboldened to support Clinton rather than jump on him."
To prove perjury, Starr must establish that a sworn statement is not only false but also "material," which has been interpreted to mean "capable of influencing the tribunal on the issue" before it. For the most part, courts have applied a fairly relaxed standard saying the false testimony need only be generally relevant, not central, to the case. Also, materiality is measured at the time the statement was made, not in hindsight.
"It is only reasonable to interpret the law in such a way that if somebody tried to obstruct justice in a pending federal case it is not a defense for them later to say, 'Well, gosh, it proved to be unnecessary,'" said defense lawyer Robert Luskin.
Schmidt reported from Little Rock, Baker from Washington. Staff writers Ruth Marcus, Juliet Eilperin and Bill Miller in Washington and special correspondent Sharon Waxman in Los Angeles contributed to this report.
© Copyright 1998 The Washington Post Company
Reprinted without permission