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.
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:
* If Starr thought the affidavit had been filed because of statements Lewinsky made on the Linda Tripp tapes, why didn't he confirm this by calling the U.S. District Court in Little Rock, Ark.? If he was worried about the difficulty of getting that information from the court, why didn't he file a motion to do so?
* Did Starr tell Reno that the Lewinsky affidavit had not been filed with the court in the Jones case?
* If Starr knew that the affidavit had not been filed, and chose not to inform her, is such a knowing misrepresentation grounds for his removal under the Independent Counsel Act?
* If Starr had told the attorney general on the Jan. 15 application that the Lewinsky affidavit had not been filed with the court (or that he did not know one way or the other), would this have affected her decision to recommend expanded jurisdiction?
Would she at least have wanted to delay a decision on his application until she could settle the issue of the affidavit?
Illegal interrogation tactics
Despite the Starr Report's benign descriptions of the prosecutor's questioning of Lewinsky on Jan. 16 (and similar descriptions in newspaper leaks shortly after the Lewinsky story broke), we know from her grand jury testimony that these characterizations were false - as false as Starr's suggestions in his letter to Steven Brill, editor-in-chief of Brill's Content magazine, that the prosecutors never asked Lewinsky to wear a wire to record conversations with Jordan and possibly the president (flatly contradicted by Lewinsky in her grand jury testimony).
Lewinsky asked prosecutor Michael Emmick to leave the room when she responded to questions from grand jurors about what happened that day - questions that Emmick appeared to be eager to prevent them from asking. We now know why. Lewinsky's testimony to the grand jury clearly shows that Starr's prosecutors (Jackie Bennett, Emmick and Bruce Udolf) violated Justice Department regulations and ethical rules when they "actively discouraged" her from calling Carter.
In a lengthy floor statement Oct. 8, Sen. Carl Levin, a Michigan Democrat, pointed out that Starr's team violated a 1994 Justice Department regulation barring prosecutors from negotiating an
immunity deal with an individual without the consent of the counsel they know represents her.
In addition, the team appears to have violated the overall prohibition from the same set of regulations on government prosecutors from questioning a witness who is known to be represented by counsel without first obtaining that counsel's consent.
Also, according to Lewinsky's grand jury testimony, the prosecutors appear to have violated the regulation prohibiting the disparagement of the counsel known to represent the interrogated individual or any attempted disruption of her relationship with him. Such violations by Starr's prosecutors also would constitute a violation of the Independent Counsel Act, which requires an independent counsel to comply with established Justice Department policies, and thus would be grounds for removal under that act.
Another area of possible misconduct was Emmick's exaggerated threats to Lewinsky of potential criminal exposure to persuade her to cooperate. Lewinsky told the grand jury that the prosecutor told her that she could "go to jail for 27 years" because she could be charged with "perjury and obstruction of justice and subornation of perjury and witness tampering."
Because the Lewinsky affidavit had not been filed with the court when Emmick made the statement, his reference to a possible perjury prosecution was certainly exaggerated. Either Emmick knew that the affidavit had not been filed, and was engaging in deliberate misstatement to intimidate Lewinsky, or he was negligent in failing to check with the U.S. District Court in Little Rock on the issue before questioning Lewinsky. In either case, there is a serious case of professional misconduct here by Emmick.
Lewinsky twice told the grand jury twice that she felt "threatened" by Starr's prosecutors. She specifically testified that she felt "threatened" if she exercised her right to call Carter, that she would not necessarily be offered an immunity agreement if she did so. Certainly, the exaggerated and false reference to possible 27 years of imprisonment would have caused most people to feel threatened and intimidated in such a situation.
Lewinsky said Starr's prosecutors did not want her to call Carter because they were afraid he would call Jordan, whom they suspected had assisted Carter in the writing of Lewinsky's false affidavit denying a sexual relationship with the president. We now know there were far more important reasons for the prosecutors to discourage her from making that call.
Starr isn't above the law
An investigation of possible misconduct by Starr and his prosecutors is not an effort to change the subject.
The president's conduct was wrong, but the possibility of prosecutorial misconduct is not irrelevant. We know that due process and prosecutorial rules of appropriate conduct are at the heart of our criminal justice system. These rules are based on the premise that government cannot enforce the law if it is a lawbreaker.
Courts have dismissed a prosecution case or overturned a guilty verdict based on serious prosecutorial misconduct. In an impeachment process, which involves a mixture of law and political judgments by members of Congress, the issue of a tainted and illegal prosecution based on misconduct and violation of Justice Department policies is more relevant.
We have heard Starr, Republican critics of the president, and many other Clinton-bashing pundits remind us that the president should not be above the law. But neither should he be below the law, and neither should Starr be above it.
The Judiciary Committee should investigate these issues to get definitive answers to the questions: "What did Starr know? And when did he know it?"
Prosecutors' actions set the course
Jan. 16, Monica Lewinsky doesn't call attorney after being intimidated by prosecutors.
Later on Jan. 16, Linda Tripp tells Jones' lawyers of the Lewinsky investigation.
On Jan. 17, Clinton, unaware of preceding events, denies Lewinsky affair.
On Jan. 20, Lewinsky's false affidavit, denying an affair with Clinton, is filed in the Jones case.
But, what if ... Lewinsky called her lawyer
Feeling the pressure of Starr's team, Monica Lewinsky seeks legal help.
Attorney Frank Carter never files Lewinsky's false affidavit in the Jones case.
Call to Clinton
Vernon Jordan alerts president of Lewinsky's session with Starr's team.
Clinton lawyers, including Robert Bennett, avoid, or at least delay, the president's sitting for Jones deposition.
Lanny J. Davis served as special counsel to President Clinton from December 1996 to February 1998.
Pub Date: 11/01/98