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Breaking The Silence

Now that Clinton has been subpoenaed, will his lawyer David Kendall let him tell the story, and if so, what will that story be?

By Karen Tumulty/Washington

TIME magazine

(TIME, August 3) -- For Bill Clinton to look this good in the polls after six months of sex scandal is a measure of his survival skills, dumb luck and, above all, the wall of silence erected by his personal lawyer, David Kendall. It took a reserved Quaker who views the law in life-and-death terms to muzzle a politician used to talking his way out of trouble.

The President will find out just how good Kendall is in the next few weeks as independent counsel Kenneth Starr presses Clinton harder than ever to testify. Starr has invited the President's cooperation at least half a dozen times in recent months, and now the courtship between the two men has taken a more coercive turn: last week he took the unprecedented step of serving a sitting President with a subpoena in a criminal matter in which the President himself is in jeopardy. The White House said virtually nothing about the showdown except to acknowledge for the first time that Kendall had stepped up the delicate process of ensuring "the grand jury gets the information it needs." In other words, Clinton must soon decide whether to change course and capitulate to Starr's demands or stare him down in a constitutional battle that could be a short route to impeachment proceedings.

The White House announcement last Friday lends itself to many interpretations, each carrying its own degree of cynicism: Was it a good-faith effort by Clinton to cut through the thicket of circumstantial evidence, Secret Service recollections and secondhand testimony by offering a firsthand account? Or was it a feint to give the appearance of cooperation and compliance that will ensure that Starr gets the blame when the President ultimately refuses to talk?

As long as Kendall is in charge, it may be a while before anyone knows the answer. Kendall operates so far below the radar that when the President's lawyer dealt Starr his most significant setback, it took nearly a month before word got out of the judge's chambers. Even Clinton's own strategists had no inkling that something serious had happened until last Tuesday morning, when White House counsel Charles Ruff warned them that the reporters covering the comings and goings of grand-jury witnesses were likely to notice some extra activity that day on the fifth floor of the federal courthouse.

What happened a few hours later was the legal all-star game of the Lewinsky scandal. Kendall, Starr and Lewinsky's lawyers gathered for the first time in one room for a hearing so private the court clerk would not confirm it happened. The issue at hand was Starr's appeal of a sealed order last month by the lower-court judge Norma Holloway Johnson, who not only admonished Starr for his team's alleged leaks but also ordered him to turn over records of its contacts with the media. The President's lawyer, who had lodged the almost forgotten complaint about leaks last February, had obviously hit pay dirt with Johnson. His motion had all his legal trademarks: it was litigated in secret, was designed to keep Starr quiet, and is a subject about which Kendall will say nothing. Sources tell TIME the appeals court put the matter on hold following the closed-door session, but the episode had clearly escalated the hostilities between Starr and Kendall.

Kendall has proved a striking antagonist to Starr. He is a Quaker to Starr's more evangelical brand of Christian; a liberal to Starr's Federalist Society conservative; a man who does his pro bono work for the NAACP Legal Defense and Educational Fund, while Starr moonlighted as counsel for a conservative Wisconsin foundation's fight for school choice. Their interplay became all the more intriguing last week when the heretofore academic question of whether the President can be subpoenaed became a very, very real one. Although the move put both sides into uncharted legal territory, it seems fairly certain that a sitting President--unlike Whitewater defendant Susan McDougal or any other ordinary citizen--cannot be sent to jail for contempt. One response Clinton can make to the subpoena is to move to quash it. Failing that, if he refuses to testify, the question of whether he must comply immediately goes to Congress. It is Congress that would then decide whether to hold hearings to determine if his defiance merits impeachment proceedings. Those hearings would inevitably give Starr an opportunity to make a broader case of widespread corruption at the White House. And while airing his case in a political setting might seem to play to Clinton's strength, last week the President's political strategists told his lawyers bluntly that Clinton will jeopardize his support among House Democrats if he refuses to testify.

Kendall's preferred option will always be silence. It was Kendall who moved most forcefully in the 48 hours after the scandal broke to shut down Clinton's own plan to explain himself and go public with, as the President put it, more rather than less; sooner rather than later. Even as the White House spin operation was weighing options on how and when Clinton would tell his story--whether it was to be in an interview or a news conference, on television or in print--"the lawyers went through chapter and verse with [Clinton] and decided it was in his best interest not to say anything," White House press secretary Mike McCurry recalled last week.

No other decision is likely to have such a profound impact on how history will view the second half of the Clinton presidency. In purely legal terms, the strategy was inarguably a sound one, the surest way to ensure Clinton's survival against what his defenders view as a perjury trap on Starr's part. But for the sake of his presidency, many in and out of the White House still believe Clinton should have drawn upon his skills as the most powerful communicator of his generation to put forward an explanation, take his chances with the consequences and try to get the scandal behind him. McCurry still wishes that Clinton had come clean, although he admits the question is a close one. "Most people think we've probably done the right thing," he says. "But we've now spent day and night for six months engulfed in this mess."

No one can know for sure, however, without knowing Clinton's entire story, and Kendall may be the only person other than the President himself who does. Says a former White House strategist: "If the facts are bad, it's absolutely the right strategy." What appears certain by all accounts is that Kendall enjoys the unwavering confidence of his clients, particularly the First Lady, who first got to know the 54-year-old lawyer as a fellow Yale law student, and who shares his near obsession with secrecy. "He's an extraordinary human being," Hillary Clinton told TIME. "He is extremely intelligent, but he's also just a decent, grounded person from head to toe, and he always impressed me--from the time that I met him until today--as someone that I could count on and trust implicitly."

It was not their old law-school ties but a budding controversy over a land deal in Arkansas that brought Kendall to the Clintons' defense five years ago. And typically, he was on the case for months before his representation of the world's most famous client became public. As the Whitewater scandal grew, so did the questions about Kendall. Could a media-shy lawyer known mainly for his work in the genteel arena of First Amendment law (his eclectic client list also includes the National Enquirer and Mohammed al Fayed, whose son Dodi died in the car crash that killed the Princess of Wales) handle a case that pitted him not only against an extraordinarily aggressive independent counsel but also two intensely partisan congressional committees? Within the White House, there were monumental battles over how much to disclose, with Kendall almost always arguing for nothing. Some still fault him for allowing what they insist is a groundless investigation into an ill-starred real estate venture to spawn controversies over mysteriously reappearing billing records, arcane battles with Congress over White House lawyers' notes, and the first-ever testimony of a First Lady before a grand jury.

Whatever questions remain about Kendall's political instincts, no one doubts any longer his stomach for battle. Says Kendall's good friend and law partner Bob Barnett, who preceded Kendall as the Clintons' attorney and is again representing the First Couple as they ponder their options after the presidency: "He knows how to fight trench warfare, and he's good at it." There is little that intimidates about this slightly built Rhodes scholar, who has an altar boy's face, a 30-year marriage and a taste that runs to highbrow books, lowbrow movies and stylish suits (at least by the standards of Washington, where a double-breasted jacket is still considered fashion forward). But on the wall of his office hangs a receipt for $35.50 that got him out of a Mississippi jail after three days on charges of operating his VW Beetle without an inspection sticker--one of at least a dozen times he was arrested while registering blacks to vote in the summer of 1964. At one time a third-generation conscientious objector, he surrendered that status to go 1-A and joined the ROTC in 1967, only to end up serving in a desk job close to home, at Fort Benjamin Harrison in Indiana.

Kendall also brings to Clinton's defense a criminal-law background that includes the only type of cases whose consequences can make impeachment seem trivial: death-penalty appeals. He made that his specialty during the 1970s as an N.A.A.C.P. lawyer. To build a relationship with his condemned clients, he would play chess with them by postcard, with as many as nine miniature boards of partly played games cluttering his cramped office at any given time. And Kendall once had to be restrained from throwing a punch at a burly warden who refused to allow his doomed client John Spenkelink to see a clergyman.

In 1978 Kendall found his way into the heart of the Washington establishment when he moved to the city's most storied criminal-law firm, Williams & Connolly, founded by the quintessential insider, Edward Bennett Williams. The firm and its connections into virtually every corner of Washington's criminal bar account for much of the leverage Kendall holds; many of the figures in Starr's case hired lawyers recommended by Kendall, Barnett and others at their firm, and Kendall has long-standing ties to Lewinsky's lawyers as well. As one witness after another parades before the grand jury, it is perfectly legal for everyone in this network to share what has been said in the secret proceedings and what they have been able to discern of Starr's strategy.

From what he has learned so far, it must give Kendall pause to realize that if Clinton testifies willingly or under court order, the President may not have much room to maneuver. Starr will want to explore every detail, pressing Clinton far harder than Paula Jones' attorneys did last January about the details of his alleged relationship with Lewinsky. If they didn't have sex, as Clinton insisted last January, what did they do exactly? And Clinton has never been asked in detail about the steps taken by Vernon Jordan and secretary Betty Currie to find a job for Lewinsky after she was subpoenaed in the Paula Jones case last December.

Kendall will almost certainly try in his negotiations with Starr to circumscribe the questions: he might insist, for example, on an arrangement under which Clinton would be required to answer questions about only the period in which Lewinsky worked at the White House, thereby avoiding any discussion of the period in which a cover-up might have occurred. But it is difficult to imagine how Starr, who has subpoenaed Lewinsky's bookstore receipts, would accept such limits. And it is hard to imagine that Kendall would agree to allow Clinton to testify without them.

If Clinton is flirting with the idea of breaking his silence, Kendall can be counted on to stay wedded to his. For this article, he refused to be interviewed, except to confirm basic biographical data. Asked for anything further, Kendall offered the answer he has practiced so often it has become a reflex: "I don't have any comment at all."

--With reporting by Michael Duffy and Michael Weisskopf/Washington

Presidents Who Testify

Clinton wouldn't be the first, but the others weren't called in criminal cases in which they might be a target

Does Independent Counsel Kenneth Starr have the power to subpoena President Clinton to appear before a grand jury? Now that he has tried, lawyers will be debating legal precedents dating back to the early days of the Republic. It's true, as the Supreme Court said last year in Clinton v. Jones, that Presidents have been responding to court orders often enough that "such interactions can scarcely be thought a novelty." But until now no sitting President has been subpoenaed in a criminal investigation of which he was the focus. They've always given evidence against others. Clinton supporters say the Constitution permits criminal charges to be brought against Presidents by Congress only through the impeachment process. If a court cannot try a President, they argue, it cannot make him answer a subpoena either. If Clinton responds to Starr's subpoena by refusing to appear, he may provide the legal case that settles the question once and for all.

1807 Thomas Jefferson agreed to provide information to the court presiding over the treason trial of former Vice President Aaron Burr

1975 Gerald Ford testified by videotaped deposition in Lynette ("Squeaky") Fromme's trial for attempting to assassinate him

1980 Jimmy Carter provided videotaped testimony in connection with the bribery trial of fugitive financier Robert Vesco

1990 Ronald Reagan his presidency over, gave videotaped testimony in the Iran-contra trial of his former National Security Adviser John Poindexter

In TIME This Week

Cover Date: August 3, 1998

Breaking The Silence
Murder In The House
How To Make The Secret Service's "Unwanted" List
Shining A Light On Abuse
Calvin Trillin: A Nose For Posterity
Notebook: Barney Frank Is The Point Man

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