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Legality of order questioned; Democratic senator asks Rehnquist to decide; TRIAL IN THE SENATE


WASHINGTON -- The immunity deal that Monica S. Lewinsky signed July 28 -- a standard arrangement if it had been made in an ordinary criminal case -- suddenly became the center of a roiling new constitutional controversy yesterday.

That controversy promptly landed in the lap of Chief Justice William H. Rehnquist.

It was put there by a Democratic senator sympathetic to the president, Tom Harkin of Iowa, asking Rehnquist to act, not as the head of the Supreme Court but as the presiding officer of the Senate impeachment trial of President Clinton.

It was by no means clear, however, that Rehnquist would do anything about it, at least immediately.

These rapid-fire developments grew out of a one-paragraph order with no explanation, issued by a federal judge yesterday morning, interpreting Lewinsky's immunity agreement with independent counsel Kenneth W. Starr as a requirement to provide new evidence that House prosecutors could seek to use to have Clinton removed from office.

House prosecutors, joined by Starr or his staff, were aiming to question her today, after she flew in from Los Angeles yesterday.

The order by U.S. District Judge Norma Holloway Johnson became not only a source of new partisan division at Clinton's trial but also turned by day's end into a potentially serious constitutional problem -- depending upon how Rehnquist and the Senate react.

Harkin labeled the judge's order an unconstitutional interference in the Senate trial. He asked Rehnquist to undo it.

But, since Harkin's plea was handed to the chief justice in a letter, outside the Senate trial, there was no certainty that Rehnquist would treat it as valid. The dispute might have to be unraveled when the Senate trial resumes tomorrow.

Lewinsky did not appeal the judge's order.

Johnson's mandate added considerably to Starr's authority to act as an investigator for the House, enabling him to team up directly with House prosecutors not only to strengthen Lewinsky's testimony against the president but to use her as a continuing source of evidence as the impeachment trial proceeds.

In an ordinary criminal case, prosecutors grant immunity to key witnesses in order to get testimony they believe they need. That is what Starr did in making the deal with Lewinsky.

According to Georgetown Law Center professor Julie R. O'Sullivan, a criminal law expert, such deals amount to contracts between prosecutors and those witnesses -- contracts that prosecutors may insist be enforced.

"Under an immunity agreement, a witness can't say no to the prosecutor," O'Sullivan said. She said it would be normal practice for a prosecutor to debrief a witness before putting that witness on the stand -- as House managers wished to do with Lewinsky.

But the professor, who has been a sharp critic of Starr's broad interpretation of his powers to aid the House in the impeachment process, said his move into court on the House's behalf to enforce the Lewinsky immunity deal raised constitutional questions.

She questioned, for example, whether it is valid for Starr to seek to enforce the immunity deal for the benefit of an outside party -- the House prosecutors.

O'Sullivan added, though, that since there are so few precedents on the impeachment process, it is unclear whether Starr's expanded role would intrude unconstitutionally on the Senate's powers to control the issue of witnesses.

Arguments could be made either way, the professor suggested. The Senate has postponed that issue until next week.

In his letter to Rehnquist, Harkin noted that the Supreme Court had said the courts had no role in the impeachment process, since the Constitution gives the Senate "the sole power" to try impeachment charges.

The House prosecutors, pummeled by Democratic senators about their arrangement with Starr, insisted it was an entirely ordinary legal maneuver, done by lawyers all the time before they submit witness lists, and they do not need the Senate's permission.

They must tell the Senate by tomorrow what witnesses they want to call in Clinton's trial.

The new controversy revived a continuing constitutional debate about the role Starr has played in the impeachment process.

In the 21 years since the independent counsel law was adopted, none before Starr had functioned as an arm of the impeachment process. The investigation by a Justice Department prosecutor that led to the effort to impeach President Richard M. Nixon in 1974 preceded that law.

The 1978 law creating independent counsels expressly gives them the authority to submit to Congress any evidence they find that they believe amounts to an "impeachable offense," and the law adds that Congress may "obtain information in the course of an impeachment proceeding."

The law, though, does not say specifically what kinds of authority those words were intended to give to an independent counsel.

Starr has always interpreted that power broadly, expressly rejecting, for example, a White House argument that he could only submit evidence to Congress without assessing whether it justified impeachment.

His Sept. 9 report to Congress and his later testimony to the House Judiciary Committee strongly urged Clinton's impeachment.

On Friday, he again took a broad view of his powers, in an "emergency motion" that led to Johnson's order yesterday -- an order that used exactly the language that Starr had proposed in a draft.

His office, Starr said, "is not acting as an agent for the House managers [prosecutors]." Rather, he said, his office "has its own, continuing duty to provide the House with information relating to impeachment."

His intervention, and the House interview with Lewinsky, he insisted, would not interfere with the Senate's authority to decide for itself what witnesses to call. That is a separate issue from Lewinsky's obligations to cooperate, Starr argued.

Under Lewinsky's immunity deal with Starr last summer, she promised to "testify truthfully" not only in Starr's criminal investigation, but in "any other executive, military, judicial or congressional proceedings."

Starr told Johnson that those words meant she was obliged to testify before "any institution at the request" of his office.

Lewinsky, through her lawyers, had insisted she would not meet with one side or the other in the impeachment proceeding, because she did not want to be put in the position of becoming "a partisan." After she resisted a House prosecution request to meet, the prosecutors asked Starr to help out.

Starr retorted that she would not be "a partisan" but would only be cooperating with the agents of the House of Representatives, not of a political party.

If Lewinsky were to violate her agreement, it provides that she would lose her immunity to prosecution for any crime she may have committed as the Starr investigation unfolded, or before.

Johnson's order stressed that if she did not cooperate with Starr and the House managers in a "debriefing," she would "forfeit her protections under the immunity agreement."

The judge's order left it up to Lewinsky to choose whether the questioning would be done by Starr's staff or by the House prosecutors or their aides.

But Starr's staff would sit in, no doubt to see that Lewinsky obeys the agreement, but also to protect their interests in her as a future witness in any criminal prosecution against Clinton.

Pub Date: 1/24/99

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