President likely to testify under oath for prosecutors White House, Starr negotiate conditions for questioning Clinton; Subpoena might not be enforced


WASHINGTON -- President Clinton, facing an unprecedented grand jury subpoena, very likely will give answers under oath to prosecutors' questions about his relationship with former White House intern Monica S. Lewinsky, it now appears.

Independent counsel Kenneth W. Starr recently made up his mind, Washington government and legal sources say, to force the issue of presidential testimony by issuing a formal subpoena to Clinton -- the first attempt to compel a president to testify personally in a criminal case.

For the time being, the president, his private attorneys and his White House advisers have decided not to try to challenge Starr's authority to order Clinton to testify under oath, although the option of resisting in court has been urged upon the president and could be again.

Instead, the president's team is seeking an agreement on the terms of that questioning -- short of a personal appearance by Clinton in the grand jury room at the U.S. courthouse.

If the negotiations succeed, Starr reportedly would make no effort to have the subpoena enforced to make sure the president testifies.

If they fail, a court battle over Starr's powers and presidential testimony could ensue.

The New York Times reported yesterday that Starr's subpoena seeks the president's testimony this week.

Starr is investigating whether Clinton lied under oath in the since-dismissed Paula Jones sexual misconduct case, when he denied having a sexual relationship with Lewinsky when she worked at the White House and afterward.

Starr also is inquiring into possible obstruction of justice, based on allegations that Clinton and others may have tried to influence Lewinsky to deny under oath that they had such a relationship.

Depending upon how far Starr is willing to go to avoid another time-consuming conflict in the courts over his powers, he may be prepared to compromise by agreeing that a president could be treated differently than any other grand jury witness, legal sources here said. That is said to be the White House hope.

But that does not necessarily mean Starr is willing to give in easily to presidential demands that Clinton be accommodated fully. No one appears to expect Starr to be willing to let Clinton simply respond in writing to written questions from prosecutors.

Rather, the widespread expectation here is that Starr will insist that Clinton submit to in-person, direct and probably intensive interrogation, perhaps stretching over hours or days.

One likely sticking point, a legal analyst here predicted, would be whether the grand jurors would be allowed to be present, wherever the president is questioned, and ask questions themselves -- as they would in the grand jury room at the courthouse.

Although some presidential advisers just days ago were urging Clinton not to submit willingly to a subpoena, the White House in recent days has sought to show that the president and his aides will cooperate rather than fight.

For months, Starr's repeated requests -- one legal source here said there have been six -- for Clinton to answer prosecutors' questions have been turned down at the White House. Those, however, were invitations, not attempts to compel testimony with a subpoena.

The White House and Starr's office continued yesterday to refuse to comment on the growing number of indications that a subpoena for the president's testimony has been delivered by Starr's agents to one of Clinton's private attorneys, David S. Kendall.

But the White House, while refusing to concede on Friday that Clinton had been ordered to testify, did acknowledge that Kendall and Starr were negotiating.

White House press secretary Mike McCurry stressed that "Mr. Kendall is working with Mr. Starr's office to provide the information that the grand jury needs."

McCurry made a studied effort to convince reporters that the only reason the White House was mentioning the discussions was a desire to respond to repeated media inquiries.

Since then, however, it has become increasingly clear that Starr's determination to move beyond an impasse over presidential testimony lay behind the talks.

The strongest public statement of potential resistance by the White House came this month from John M. Quinn, Clinton's former White House counsel, who is said to retain influence at the White House. Writing in the Wall Street Journal, Quinn said:

"If I were still the president's lawyer, I would advise him to challenge a subpoena from Mr. Starr on constitutional grounds.

"Given its effect on the Constitution and the presidency, the argument that the president must answer unproved allegations against him before a grand jury is scary."

Some of the president's other legal advisers are known to have argued that a court fight over a subpoena would not necessarily be a losing one.

That view is strongly disputed by other legal analysts.

Jonathan Turley, a George Washington University law professor who has emerged as a strong supporter of Starr's powers, said yesterday that "the suggestion that the White House could successfully block a subpoena on constitutional grounds is a dangerous delusion.

"The odds that the Supreme Court would allow a president to refuse to testify ranks with the odds that an asteroid will hit."

The Supreme Court has never ruled directly on whether a president can be compelled to testify in a criminal case, although it did rule in 1974 in the case of Richard Nixon that a president could be required to turn over criminal evidence to prosecutors.

The pace of Starr's investigation before the grand jury has quickened over the past week, but legal sources said the need to move on was not the key factor in the decision to issue a subpoena. Rather, it was continued White House resistance to cooperation.

Even if the president does testify, Starr will not be able to wrap up his inquiry for some months, congressional sources have said.

He and the White House are awaiting the outcome of a court challenge to Starr's authority to question deputy White House counsel and Clinton confidant Bruce R. Lindsey. A federal judge has ruled that Lindsey's conversations with Clinton about how to react to the Lewinsky investigation were not protected by attorney-client secrecy.

That issue has been pending for a month in a federal appeals court, which is taking more time to reach a decision on that point than the few days it took on the separate issue of whether Secret Service agents could be forced to testify before the grand jury about their observations of Clinton while protecting him at the White House.

The appeals court and Chief Justice William H. Rehnquist acted swiftly in ruling that the agents must testify.

Pub Date: 7/26/98

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