Ginsburg and Starr Baffle Legal Peers

For the lawyers of the nation’s capital, the overriding question of the last three weeks has not been whether President Clinton had an affair with a former White House intern, whether he urged her to lie about it or whether this alleged unseemliness might lead to his impeachment.

Instead, theirs has been a more pointed question: What are these guys doing?

The lawyers are speaking--and not too kindly--of independent counsel Kenneth W. Starr, the prosecutor who has never prosecuted a case, and defense attorney William H. Ginsburg, whose specialty is medical malpractice, not criminal defense.

Before microphones and cameras, both Ginsburg and Starr have repeatedly said they seek only to have Monica S. Lewinsky tell the truth. Yet, after nearly a month of very public squabbling, they have been unable to agree on a deal that would give her complete immunity from prosecution in exchange for her testimony.

Lewinsky may appear before a grand jury here as early as this week. Barring a last-minute deal, she is expected to refuse to talk, asserting her 5th Amendment right against being “compelled in any criminal case to be a witness against” herself.

That said, she will not be off the hook, however. Starr could choose to prosecute her for perjury because her words on Linda Tripp’s tapes differ with her sworn affidavit in the Paula Corbin Jones sexual-harassment suit against Clinton. By her accounts to Tripp, she had an affair with Clinton; by her affidavit, she did not.

Far more likely, however, is that Starr will obtain a court order that forces her to testify, but with the understanding her words cannot be used against her. Lawyers call this “use immunity.”

The prosecutor will then have his prize witness on the stand, but lawyers say a reluctant witness is rarely a talkative one. Starr may have blown his best chance to get the full story from a young woman anxious to tell it, they say.

“Ken Starr has totally mishandled this witness, but it’s only his latest mistake,” says Abbe Lowell, a white-collar-crime defense lawyer and former Justice Department prosecutor. “I believe he owed it to the president and the public to get out the truth immediately. [The prolonged negotiations] have undercut his case and created the appearance he wants to manipulate her testimony.”

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While the prosecutor has been sniped at for heavy-handed tactics, Ginsburg has been derided as ill-prepared and overmatched. Having invaded the turf of Washington’s finest, the Los Angeles lawyer offended local sensibilities by going on television--repeatedly--to discuss his case.

His media omnipresence raised the specter of the O.J. Simpson case and its legion of celebrity lawyers.

“I don’t see any strategy on his part, other than getting himself lots of exposure,” says Daniel F. Rinzel, a former Justice Department attorney. “He’s also managed to undermine the credibility of his client by going on TV and suggesting she has a youthful imagination. That’s not a good idea if you are trying to make a deal with the prosecution.”

In one interview, Ginsburg said, “All 24-year olds tend to embellish.” In another, he described the president and Lewinsky as “colleagues.” In a third, he said they had an “emotional” relationship.

Veteran defense lawyers say they were dumbfounded to see an attorney show his cards before he plays his hand.

“Either he’s terribly stupid or he’s playing games,” says John P. Hume, another white-collar-crime defense lawyer.

“I think Ginsburg’s erratic pronouncements in the press made Starr’s people anxious about whether she would be a reliable witness,” adds Thomas Green, a defense lawyer who represented Oliver L. North’s secretary, Fawn Hall, a decade ago in the Iran-Contra case.

The griping from the grandstands had grown so loud last week that Ginsburg answered the criticism in Time magazine.

“My whole media campaign” has “been designed to demonstrate that my client is a responsible young woman who speaks the truth. . . . I really resent all of the tabloid-like allusions to ‘Beverly Hills 90210,’ because Monica was no different from affluent kids anywhere else. She grew up with the morals of the ‘80s and ‘90s.”

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Ginsburg’s longtime law partner, Harvey T. Oringher, says the sniping from Washington lawyers is unfair.

“It’s unseemly for other attorneys to second-guess him and speculate on his performance without having all the facts and knowing what is going on,” he said.

At first, Ginsburg said he balked at Starr’s offer of total immunity because, he said, the prosecutor refused to put it in writing. Later, as some doubts about Lewinsky’s credibility emerged and other evidence was accumulated, Starr’s staff said they wanted to interview the ex-intern before giving her immunity.

They believe they were burned by former Justice Department official and Clinton pal Webster L. Hubbell, who was given immunity in the Whitewater case but then said he had nothing to tell.

In recent days, Ginsburg threatened to take Starr to court to try to enforce an earlier promise of immunity. That tactic too had been criticized as amateurish.

“Filing a motion to enforce an immunity agreement is a grandstand play, at least at this stage. This guy doesn’t know what he’s doing,” said another former Justice Department lawyer.

The skirmishing between Ginsburg and Starr may prove of little lasting significance. Most Washington lawyers believe Lewinsky almost surely will testify before a grand jury under some grant of immunity.

“She has no intention of falling on her sword. She will not go to jail. She will appear before the grand jury whenever she is ordered,” Ginsburg said Tuesday.

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Times staff writer Ronald J. Ostrow contributed to this story.