Session yesterday was only one of 18 with fresh evidence; Depositions by trio raise new strategy questions


WASHINGTON -- Of the 18 sessions that the Senate has held in the impeachment trial of President Clinton, only one, yesterday's, was set aside for new evidence -- that is, evidence going beyond the report independent counsel Kenneth W. Starr filed with the House nearly five months ago. The presentation of that evidence raised a variety of questions. Sun staff writer Lyle Denniston supplies these answers.

Does the new evidence -- portions of videotaped testimony of three witnesses -- add anything to the case for Clinton's conviction or against conviction?

Yes and no. In any trial, the actual testimony of witnesses, whether in person or via videotape, contributes significantly to an observer's ability to judge whether they are telling the truth. A written transcript does not work as well for testing credibility. Thus, senators had a good basis for weighing the accounts of Monica Lewinsky, Vernon Jordan and Sidney Blumenthal. The fact that each side was able to use portions of testimony, sometimes the same portions, to make conflicting points did not affect the credibility issue.

In substance, though, the tapes added almost nothing to what was in the Starr report. The three witnesses stayed close to their testimony before the grand jury led by Starr. House prosecutors and the president's lawyers each picked out the parts they believed helped their side, but little of what each chose added hard evidence that crimes were or were not committed.

More so than in a regular court trial, the videotapes served mainly as a new platform for rearguing the merits of each side's already familiar case.

Did the House prosecutors hope to gain any advantage from this evidence?

They certainly did. Though disappointed that they were allowed only three witnesses, and then only on videotape, they saw the presentation as one more opportunity to prove, as Rep. Lindsey Graham put it near the close, that Clinton "lied to somebody" and that the president's version of the "whole story is a fraud and a farce."

By weaving clips of freshly made videotape between their oft-repeated points about perjury and obstruction of justice, they expected to make those points come to life in a more vivid way. If they could not persuade the Senate to convict, at least they wished to make their case look stronger and their efforts more justifiable.

What did the president's lawyers hope to get out of this?

Confident that the Senate will not convict, Clinton's defense team still wanted another chance to make the point that the new evidence was not a stronger basis for conviction and removal than the Starr report was, and, in fact, that "there's nothing new here," as Nicole Seligman put it.

Last week, the Clinton team fought having any of the videotapes shown to the Senate but was fully ready to counter after the prosecutors made their presentation.

In fact, the president's rebuttal had clearly been crafted in advance, rather than having been held in abeyance to see what the House did first.

What techniques did each side use to exploit the videotapes?

Both sides followed the same basic approach: make a point, show a video clip that supposedly proves it, then repeat the point. That was standard courtroom trial technique. No lawyers, on either side of a case, want to present videotaped evidence in full: They want to shape it for effect, as they do a live witness' testimony.

The two sides differed, though, on the overall strategy for using the tapes. House prosecutors used thinner slices of the tapes and made heavier use of the Jordan and Blumenthal testimony than White House lawyers did. The prosecutors also focused far more heavily on the obstruction-of-justice charge than on perjury. The president's attorneys played longer segments, mainly to enable them to argue that prosecutors had been too selective and were trying to keep something from the Senate.

Would the Senate have gained anything that would help guide its decision if it had called the witnesses to testify in person?

It is doubtful that any further hard evidence would have emerged, but senators would have been able to see fuller versions of the stories that the three witnesses had to tell. There is no certainty that either prosecutors or defense lawyers would have gained from such live testimony: Cross-examination very likely would have allowed each side to recover from any temporary setbacks during initial questioning. The process almost certainly would have been a lot less tidy and perhaps would have prolonged the trial.

Near the end of the session, the president's lawyers were not allowed to play more tape of Jordan's testimony. What was that all about?

After the questioning of Jordan had concluded, Jordan made a statement to defend his integrity, apparently believing it had been challenged. Presidential lawyer David E. Kendall wanted to play that segment, to counter any negative impression of Jordan resulting from yesterday's presentation by prosecutors. It was not allowed because the Senate had decided last week that no part of the depositions would be put into evidence beyond the last answer to the last question. Jordan's statement did not fit within that restriction, Chief Justice William H. Rehnquist ruled.

Was this the prosecutors' last chance to build their case?

No. Tomorrow, they and the president's lawyers will have three hours each to make closing arguments -- rather like summations or addresses to the jury in a regular court trial. More oratory can be expected from that, in an attempt to finish on strong rhetorical notes before senators start to deliberate.

Pub Date: 2/07/99

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