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Clinton defense gains time GOP willing to extend Judiciary presentation, calls for factual rebuttal

THE BALTIMORE SUN

WASHINGTON -- White House lawyers will likely get more than one day this week to present a defense of the president, but Judiciary Committee Republicans demanded yesterday that the White House drop its abstract constitutional arguments and attacks on the prosecutor -- and instead present a factual defense of the charges against the president.

Committee Chairman Henry J. Hyde tried to meet the White House's Friday night request for three to four days to mount its defense while keeping the inquiry from spilling into next year, when Republicans will hold a narrower House majority and political pressure will demand an end to the impeachment inquiry. He stopped short of spelling out just how many days presidential defenders will have, but committee aides said they will get more than the one day originally allotted.

"In the interest of fairness, I intend to make a sincere effort to accommodate this last-minute request," Hyde said. "Our final decision must be guided by what is reasonable. I fully intend for the committee to discharge its constitutional duties in this inquiry by the conclusion of next week."

With House Republicans ready to narrowly approve at least one article of impeachment this month, Democrats and the White House enter a tense final sprint to head off what would be only the second presidential impeachment in the nation's history.

"The stakes are higher. The adrenalin will be flowing," said Julian Epstein, chief counsel for the Judiciary Committee's Democrats. show time."

Committee aides rushed yesterday to complete three formal articles of impeachment, and White House lawyers prepared a point-by-point rebuttal of the charges of lying under oath, obstructing justice and abusing the power of the presidential office.

Congressional Democrats -- and some moderate Republicans -- are encouraging the president's personal lawyer, David Kendall, and White House counsel Charles F. C. Ruff to abandon or temper their attacks on independent counsel Kenneth W. Starr and Judiciary Committee Republicans, and concentrate instead on explaining why the president's conduct did not violate the law.

White House lawyers asked Friday to be allowed to call experts on the constitutional standards for impeachment; on standards for prosecuting perjury, obstruction of justice and abuse of power; and on prosecutorial misconduct and the impact of tainted evidence.

Hyde appeared yesterday to reject yet another discussion of impeachment and perjury standards, saying that the committee has already heard from 30 witnesses on those subjects. In fact, Hyde noted, the majority of those witnesses had taken the White House's position that the charges against Clinton failed to meet the impeachment standard of "high crimes and misdemeanors" and failed to meet the standard of criminal perjury. Hyde also said that Kendall and Democratic chief investigator Abbe Lowell had already cross-examined Starr on charges of prosecutorial misconduct.

"The president's lawyers have made it quite clear they do not intend to challenge the facts," Hyde snapped. "I hope this last-minute flurry of possibly redundant witness requests is not intended to delay the inquiry."

White House lawyers now appear to realize they have to begin challenging the facts if they are to shift the House against impeachment.

Connecticut Gov. John G. Rowland, a Republican who opposes impeachment, said the White House's strategy of evasive answers and political attacks has made it difficult for moderates like himself to speak out against the conservative drive to remove Clinton from office. Last month's legalistic response to 81 questions posed by the Judiciary Committee may have stifled a brewing moderate Republican revolt against impeachment.

"A month ago, the momentum was clearly going the other way, but the so-called answers to those 81 questions flew in the face of the whole let's-get-back-to-business movement," Rowland said.

If the White House lawyers can raise significant doubts that the president legally perjured himself before Starr's grand jury, he could sway the 20 or so Republican votes he will likely need next week to defeat articles of impeachment.

"You know how [Washington] works," Rowland said. "Give it a couple of days, and maybe the momentum will shift back."

Republicans have been asserting for weeks that the president perjured himself first in January, when he told Paula Corbin Jones' attorneys he had not had sexual relations with Monica Lewinsky, then in August before Starr's grand jury, when he said he had been "legally accurate" in his denials. And Republicans assert that the Clinton team has never disputed the charges.

That, in fact, is not true. In their response Sept. 12 to Starr's initial impeachment report, Ruff and Kendall challenged each accusation point by point.

"No one has responded to the rebuttals," a White House attorney complained. "Other than accepting the prosecutor's report on this, no one on the committee has shown any inclination to delve into the evidence."

To charge the president with perjury, Congress would have to prove Clinton "knowingly" made false statements under oath, and under the law, "literally true statements" cannot be the basis for a perjury prosecution, even if they were phrased to mislead a questioner.

Republicans say Clinton lied under oath when he said oral sex performed by Lewinsky did not fit his understanding of the definition of "sexual relations" in the Jones sexual misconduct lawsuit, but they would have to prove his interpretation was made in bad faith and was unreasonable.

Before the Starr grand jury Aug. 17, Clinton allegedly committed perjury when he again said oral sex was not covered by the definition of sexual relations, when he contradicted Lewinsky's testimony in denying touching certain parts of Lewinsky's body, and when he said his relationship with Lewinsky began in January 1996, not November 1995, when Lewinsky said it began.

Ruff and Kendall have rebutted each allegation. First, they say, it is absurd to charge that the president lied when he said he "believed" oral sex was not covered by the Jones definition. Starr, they said, "makes the extraordinary claim that the president committed perjury before the grand jury by lying not about some fact but about his belief about the meaning of certain words. This claim is quite stunning."

The question of whether Clinton touched certain parts of Lewinsky's body turns on a classic "he said, she said," an impossible dispute to resolve, the lawyers say.

"The critical issue is not whether the testimony of the president and Ms. Lewinsky differ but whether there is any evidence that the president knowingly and intentionally gave false testimony," the president's lawyers wrote.

Because the issue is so sexually loaded and politically dangerous, Republicans have thus far never mentioned the sexual discrepancy and could risk a deadly voter backlash if they impeach the president on the issue of where exactly he touched Lewinsky.

Finally, Republicans contend that the date that marked the beginning of Clinton's affair is at least politically significant, since a November encounter would have happened when Lewinsky was still an intern, not merely a low-level White House employee. But the White House and Democrats say impeaching a president over a three-month discrepancy in dates would be absurd and legally untenable.

"As a legal allegation, this claim is frivolous, because the statement by the president regarding the timing of the relationship was utterly immaterial to the grand jury's investigation," Ruff and Kendall wrote.

Although White House aides point to the September written rebuttals, they have been loath to explain publicly how the president's evasions did not rise to the level of criminal perjury, fearing their legalistic defenses would ring politically hollow.

Few members of Congress may have read the rebuttal carefully, and most appear to have accepted Judiciary Committee contentions that Clinton has never bothered to defend himself. And the Clinton camp has been wary of making the president's case before committee Republicans who appear to have already made up their minds. That was starkly illustrated, White House aides say, when Hyde and his fellow Republicans gave Starr a standing ovation at the conclusion of his testimony Nov. 19.

"Any time you're facing a courtroom in which the judge is giving a standing ovation to the prosecutor, there's clear reason for concern," a White House attorney said. "One of the most cherished principles of our judicial system is that people are innocent until proven guilty. They've destroyed that in their efforts to impeach the president."

But Clinton's lawyers may have to break their silence this week.

Pub Date: 12/06/98

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