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Clinton Gets Subpoena in Lewinsky Case

TIMES STAFF WRITER

In an extraordinary development in the Monica S. Lewinsky investigation, President Clinton has become the first president to receive a grand jury subpoena for his testimony in a criminal investigation, legal sources disclosed Saturday.

The unprecedented subpoena from independent counsel Kenneth W. Starr adds a new sense of urgency to Clinton’s pledge to cooperate in the inquiry.

President Nixon received a subpoena for his tapes but not for his testimony during the Watergate scandal. Clinton’s earlier White House taped testimony was for a trial, not a grand jury.

As Clinton’s personal attorney and Starr’s staff pursue stepped-up discussions to elicit Clinton’s testimony, legal experts say that both the president and the special prosecutor have much to gain from a voluntary agreement.

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For Starr, any agreement to obtain the president’s testimony would avoid legal delays that could last for months if his subpoena is challenged in the federal courts.

For the White House, resisting Starr’s summons would run the risk of alienating the public at a time when the president’s public opinion ratings remain high. While polls have shown most Americans are tired of Starr’s long investigation, 64% in a recent Fox poll said Clinton should testify.

If an agreement is reached, as many expect, Starr’s subpoena could be withdrawn, lawyers said.

The subpoena accelerates the pressure on Clinton after several unpublicized overtures from Starr to the White House “inviting” the president to testify, legal sources said.

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In an interview with The Times two years ago, Starr said he usually follows the Justice Department’s guidelines for its prosecutors, even though he is not legally subject to them.

These guidelines instruct prosecutors to “invite” targets of criminal investigations to testify before grand juries before any indictment being returned. In the case of a president, however, a prosecutor cannot seek a grand jury indictment but must refer any charges to the House of Representatives for possible impeachment.

Starr has refused to say when, or if, he will send a report to Congress. Many legal authorities expect he will do so, but not quickly. Most expect a report late this year.

Like any American, Clinton has the option of refusing to testify on grounds his testimony could incriminate him. However, one of his legal advisors said flatly: “This would be politically unacceptable. If he did that, he might just as well resign.”

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Other Democrats have urged Clinton to tell his side of the story. “I would hope that he would. I think that he would,” House Minority Leader Richard A. Gephardt (D-Mo.) said in an interview on CNN on Saturday.

“He has supplied more information [in the Whitewater case] than any president at any time in our history,” Gephardt said. “He’s been more investigated than probably all the presidents put together in the history of the country.”

It is considered unlikely Starr would insist on hauling the president before one of the two grand juries he is using here. Clinton has expressed distaste for that forum, noting that his lawyers could not be present there and declaring that he does not trust Starr, White House sources said.

The most likely scenario is that Starr and top staff members would be content to question the president under oath in a videotaped session in the White House--an option that some of Clinton’s legal advisors are strongly urging.

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Lanny J. Davis, a former White House lawyer who still advises the president informally, said it would be “clearly in the president’s interest to avoid a constitutional confrontation.” He referred to the fact that some legal scholars believe Starr could not use the federal courts to enforce a subpoena against a sitting president because of the separation-of-powers doctrine.

Recommending cooperation by the president, Davis said he presumes “a venue in the White House or an attorney’s office” will be judged preferable to Clinton’s testifying in the grand jury hearing room.

Presidential Press Secretary Mike McCurry told reporters on Friday that Clinton’s personal attorney, David E. Kendall, is trying to make arrangements with Starr “consistent with the president’s view that we should cooperate.” McCurry added that Kendall will “try to ensure that the grand jury gets the information that it needs.”

There is ample precedent for obtaining testimony from the president in keeping with the dignity of his office. Both the president and First Lady Hillary Rodham Clinton have already been questioned in the White House by investigators, or have submitted answers to written questions, several times in the last three years on financial aspects of the Whitewater case.

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In addition, Clinton has twice provided testimony videotaped in the White House that was played for jurors in two Whitewater-related criminal trials in Little Rock, Ark., in 1996. And in the now-dismissed Paula Corbin Jones sexual harassment lawsuit, Clinton gave a videotaped deposition in his lawyer’s downtown office in which attorneys for Jones surprised him with questions about Lewinsky, a former White House intern.

Clinton’s denial of a relationship with Lewinsky led to Starr’s current investigation into whether the president lied or instructed Lewinsky to lie in her own affidavit.

In the Watergate case, the Supreme Court ruled, 8-0, with William H. Rehnquist, a Nixon appointee, recusing himself, that Nixon had to turn over the tapes.

President Reagan gave written answers in the Iran-contra inquiry, and after leaving office he provided videotaped testimony for the criminal trial of former national security advisor John M. Poindexter.

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In the closing months of George Bush’s presidency, independent counsel Lawrence E. Walsh sought to question him under oath. But Bush declined and prosecutors decided not to subpoena him.

Mrs. Clinton broke precedents of sort in early 1996 by appearing in person, in response to a subpoena, before a federal grand jury to answer questions about the sudden discovery in the White House residence of her long-missing law firm billing records. She was the only first lady to have testified in a criminal investigation.


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