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If the Furor Subsides, Will There Be a Case?

By Sara Fritz, CQ Staff Writer

You hear it repeated everywhere: People saying they are not surprised that President Clinton may have had a sexual relationship with a 21-year-old White House intern, but they are horrified that he could be lying about it.

Likewise, Independent Counsel Kenneth Starr insists he chose to investigate the intern case not because he wanted to embarrass Clinton with allegations of sexual misconduct, but because he suspected the president is guilty of perjury.

You might conclude from these comments that lying -- not sex -- is the central issue in the scandal that currently threatens to engulf the Clinton presidency. But if Starr, the media and the public were primarily worried about Clinton's truthfulness, why have they waited until now to express their qualms about the president's behavior? Starr's four-year probe previously has yielded far more serious allegations of lying or obstruction of justice by the president and the first lady that failed to either stir public outrage or cause the independent counsel to bring charges.

In Starr's nearly forgotten investigation of the Arkansas land deal known as Whitewater, Clinton's former investment partner, James McDougal, told a grand jury the president lied under oath when testifying in a criminal trial. In the disputed testimony, Clinton swore that he was not present at a mid-1980s meeting at which Whitewater conspirators hatched a plot to defraud the federal government. McDougal claims Clinton attended the meeting. But the news that McDougal had called the president a liar -- just as Monica Lewinsky apparently has done -- did not cause even the slightest ripple in public opinion polls.

Nor did Starr charge Clinton with perjury based on McDougal's testimony, and the reason bears heavily on the current case. Even though the independent counsel's office was firmly convinced at the time that Clinton lied under oath in the Whitewater trial, a perjury case against the president would have relied almost entirely on the credibility of McDougal and his co-conspirator, David Hale. Both men would have been poor prosecution witnesses against the president. Both were admitted felons, and McDougal had previously told a contradictory story. This is why Starr has been seeking corroboration from McDougal's ex-wife, Susan, who went to jail rather than cooperate. Legal scholars say Lewinsky's secretly taped assertion that she has "lied all my life" would undermine her credibility as a prosecution witness.

Then there was the case of the Rose law firm billing records, which mysteriously showed up on a table in the White House months after the president's advisers failed to produce the documents in response to a subpoena from Starr. These billing records revealed that Hillary Rodham Clinton previously understated her role as a private attorney for McDougal's savings and loan. Discovery of the records prompted Starr to launch an investigation into whether Mrs. Clinton tried to cover up the nature of her legal work for McDougal by concealing the documents. He even summoned Mrs. Clinton to testify before a grand jury.

But no one was ever charged with obstruction of justice in connection with the unexplained disappearance and rediscovery of the billing records, and the public seemed unruffled by this apparent case of skulduggery at the highest levels.

Nor should we forget the obstruction-of-justice case that Starr has tried to build involving former Justice Department official Webster Hubbell. Last year, investigators discovered that some of Clinton's closest friends, including Washington lawyer Vernon Jordan, had arranged a variety of lucrative jobs for Hubbell after he came under investigation by the independent counsel several years earlier. Starr suspected the deals were intended to buy Hubbell's silence.

Yet no one has been charged in that case, either. Here again, the problem that prevented Starr from bringing obstruction-of-justice charges has a parallel in the Lewinsky controversy. Although Starr was able to trace the arrangements for Hubbell's income to Jordan and other Clinton confidantes, he has not been able to prove that anyone helping Hubbell explicitly demanded his silence in exchange for financial assistance. Such deals tend to be implied, not explicit. Even if Lewinsky will testify that Jordan tried to buy her off with a job, a corroborating witness may be hard to find.

It is curious that none of these earlier allegations of lying or obstruction of justice in criminal matters stirred as much hysteria as the suggestion Clinton lied in a civil suit about his sexual activities. It is easy to see why the public might deceive itself into thinking it is more offended by lying than adultery. But it is harder to understand how Starr, an expert lawyer, could anticipate building a case in the Lewinsky matter when he has failed to do so in these other circumstances.

As any lawyer knows, a string of unproven cover-up charges do not constitute a pattern of obstruction. If the shock of the sex scandal wanes, will Starr or Congress have the determination to pursue such a hard-to-prove case?

© 1998 Congressional Quarterly Inc. All rights reserved.
In CQ News This Week

Saturday Jan. 31, 1998

Clinton Budget Reaffirms Stand Against Broad GOP Tax Cuts
House Panel Gets Back to Business, Hoping To Put Rancor Aside
Congress Finds No Easy Answers To Internet Controversies
Long List of Its Own Trespasses Tempers Congress' Judgment
Cleland Warns Against Repeating Tonkin Gulf Mistake
If the Furor Subsides, Will There Be a Case?
Talks on Renaming Airport For Reagan Continue
Both Parties Focus on Speech Not Scandal, To Chagrin Of Some
Clinton Succeeds in Slowing Scandal's Momentum





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