Information Is the Key in Legal Game

It is the ultimate contest of high-stakes poker.

And with nothing less than a presidency hanging in the balance, the face cards in this clash of wills involving a 24-year-old former White House intern, a conservative prosecutor and President Clinton are in the form of information:

Who has it? Who can corroborate it? Who is willing to say what, under oath?

The opening hands have played out privately and publicly. Phone calls continued to be exchanged Sunday between the staff of independent counsel Kenneth W. Starr and lawyers for the former intern, Monica S. Lewinsky. Clinton and his lawyers were carefully reviewing the prospective evidence and calibrating how best to defend the president.

And that depends in no small measure on factors that at this point are entirely beyond the 51-year-old president’s ability to control.

As one veteran criminal-defense lawyer put it Sunday: “They don’t know what the hell the girl’s got on them.”

Which is precisely the risk that Clinton appeared to have contained until the cascading events of the past several days. Up to the weekend of Jan. 16, Lewinsky seemed safely in the president’s camp, sharing the same defense with him.

Now the question haunting the White House is what form an immunity arrangement between Starr and Lewinsky might take. Several days ago, Lewinsky and her lawyer, William Ginsburg, turned down an initial offer of full immunity in exchange for cooperation, which would have included her agreeing to surreptitiously tape-record various conversations with one or more people close to Clinton.

Ginsburg reiterated his desire Sunday to strike a deal, but Starr’s staff continued to hold out for a specific description of what she had to offer, in the form of a formal “proffer.”

Why is Starr insisting on a proffer, rather than simply accepting Lewinsky’s promise to cooperate?

“Any professional prosecutor will never accept a generalized statement of cooperation for immunity,” said former U.S. Atty. Joseph E. diGenova. “It would be irresponsible and tactically, stupid.”

Victoria Toensing, former deputy assistant attorney general in the Justice Department’s criminal division, said: “You can’t buy a pig in a poke. It would be like buying a product without seeing it.”

With or without Lewinsky’s cooperation, prosecutors are preparing to charge her for allegedly encouraging a friend, Linda Tripp, to testify falsely regarding Lewinsky’s relationship with Clinton.

“The longer she doesn’t ante, the more likely she may find herself out of the game,” Toensing said.

Clinton, meanwhile, has seen his once-strong position regarding Lewinsky deteriorate to what one of his senior advisors described Sunday as “rope-a-dope”--the boxing tactic of exhausting an opponent by taking his best punches.

The peril facing Lewinsky and the president is rooted in a sexual-harassment lawsuit brought against Clinton by Paula Corbin Jones, a former Arkansas state employee.

Lawyers for Jones are widely known to be seeking any woman with whom the president may have been intimate, in hopes of demonstrating a pattern of inappropriate behavior toward subordinates.

Beginning in December, as Clinton and his lawyers prepared for his long-awaited testimony in the Jones case, steps were taken to form a cooperative arrangement between the president and Lewinsky.

Against that backdrop, the president’s trusted advisor, Washington lawyer Vernon E. Jordan, helped secure a job offer for Lewinsky at a New York-based cosmetics firm. Jordan took the additional step of lining up a lawyer in Washington for Lewinsky, Frank Carter.

Ten days before Clinton was to be questioned under oath by Jones’ attorneys, Lewinsky signed a sworn affidavit stating that she had not maintained a sexual relationship with the president. Sources told The Times that Carter provided the affidavit to Robert S. Bennett, Clinton’s private attorney.

The immediate benefit for Clinton was that he could testify--without fear of being contradicted by Lewinsky--that at no point had they been intimate. Indeed, Clinton denied under oath having had any such relationship, and his aides have repeated that position over the past few days.

However, Lewinsky’s family added Ginsburg to her legal team, and Carter subsequently resigned, leaving the president no longer positioned to benefit from a defense coordinated with Lewinsky’s.

And, experts said, prosecutors may be able to demand details shared with Clinton’s lawyers by Carter if it is established that the extent of coordination amounted to a joint defense.

“Based on [Vernon] Jordan’s actions, one could get the impression that a joint defense was what was intended,” said Milton C. Regan Jr., a law professor at Georgetown University.

Clinton, meanwhile, has no shortage of legal help. Among those advising him are his private lawyers, Bennett and David E. Kendall, plus White House counsel Charles F.C. Ruff, deputy counsel Bruce R. Lindsey and Mickey Kantor, the newly returned former commerce secretary.

If Clinton’s hand now looks weakened, his defenders could put the blame squarely on the Supreme Court.

In two key decisions, the justices handed down powerful rebuffs to the president that stripped him of legal immunities.

In the case of William Jefferson Clinton vs. Paula Jones, the high court ruled in May that a sitting president who is sued over his private behavior can be forced to stand trial while in office. If the outcome was surprising, even more so was that all nine justices, including Clinton appointees Ruth Bader Ginsburg and Steven Breyer, ruled against him.

And a month later, the high court struck again. Again acting unanimously, the justices allowed Whitewater prosecutor Starr to demand the notes of White House lawyers who conferred with the president or his wife, Hillary Rodham Clinton.

Investigators working for Starr wanted to know what Mrs. Clinton had said before and after she appeared before a grand jury to answer questions about her legal work in Little Rock, Ark. The Office of the President had refused to comply with Starr’s subpoena, arguing that the notes taken by White House lawyers were confidential because of executive privilege and attorney-client privilege.

Lower courts rejected both claims, arguing that government lawyers--unlike private attorneys--cannot refuse to tell prosecutors what they know. Clinton and the Justice Department appealed, saying the case raised a major issue.

However, a unanimous high court refused even to hear Clinton’s appeal.

In the current crisis, the Supreme Court’s decision, stripping away the attorney-client privilege, compounds Clinton’s difficulties.

As the president’s legal woes have deepened, Bennett has come in for his share of criticism. Some lawyers say he bungled the Jones case through ill-considered public comments and his failure to settle the lawsuit.

And it was Bennett’s criticism of Tripp--dismissing her publicly as someone “not to be believed”--that prompted her, she has said, to tape conversations in which Lewinsky indicated that she had a sexual relationship with Clinton and was encouraged to lie about it.

Perhaps most disastrously, Bennett was unable to negotiate a settlement of the Jones case before her lawyers were authorized to round up accounts from other possible paramours of Clinton.

On the other hand, any second-guessing of Bennett must be tempered by the fact that he himself works at the direction of two sophisticated, demanding lawyers: Bill and Hillary Clinton.

Times staff writer Robert L. Jackson contributed to this report.