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Political Arena Will Decide If Starr Has Case

TIMES STAFF WRITER

Now, it’s back to the beginning.

After six months of relentless effort, the Kenneth W. Starr-Monica S. Lewinsky investigation has returned to where it began, seeking to prove President Clinton had sex with a White House intern and then lied about it under oath.

Thanks to the immunity deal announced Tuesday, Starr’s case received a legal boost.

The one sure eyewitness to the alleged sexual affair, namely Lewinsky, will testify about what happened before Starr’s grand jury. The independent counsel can then call the president before the panel to ask him about sex. If he denies it, as expected, Starr can accuse him of perjury.

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On the plus side for the independent counsel, this focus on sex and perjury presents a simple, clean case--not a complicated tale of obstruction of justice. Starr can presumably muster lots of circumstantial evidence, such as Lewinsky’s many visits to the White House, to try to show his witness is telling the truth.

But the focus on sex and lies has a disadvantage, too. Many lawyers, and apparently most Americans, respond by saying: So what?

“If you step back a bit, it still doesn’t look like a constitutional crisis,” said former federal prosecutor E. Lawrence Barcella. “This is still a case about whether the president had sex with someone half his age. The American people have understood--certainly better than politicians, lawyers and the press--that if this is ultimately about sex, it’s really no one else’s business. There are acceptable lies and unacceptable lies, and lying about someone’s sex life is one of those tolerated lies.”

Starr Faulted for Delay in Immunity

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Attorney Irvin Nathan, also a former federal prosecutor, faulted Starr for taking six months to give Lewinsky the immunity she sought in the beginning.

“We have wasted a lot of time to get to here,” he said. “And assuming Lewinsky is to be believed--and that is not a given--does the country really want an impeachment hearing focused on whether the president had sex and didn’t tell the truth about it?”

His question highlights a fundamental problem Starr faces. His case is ultimately not a legal one, but instead will be resolved in the political arena.

Unlike most criminal investigations, Starr’s grand jury will not hear the prosecutor’s evidence and then vote on his recommendation to indict the target of the probe.

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Rather, Starr’s investigation will give him evidence to present to the House of Representatives. Under the Constitution, only the elected representatives can vote to indict a president for alleged “high crimes and misdemeanors” and send his case to the Senate for a trial and possible removal from office.

And as a political issue, Starr’s case looks no stronger than when he began the Lewinsky investigation in January.

In the weeks after the news broke, opinion surveys found most Americans assumed Clinton had some sort of sexual relationship with Lewinsky. Nonetheless, his popularity ratings went up.

Meanwhile, Starr’s aggressive investigative tactics have driven the prosecutor’s already low ratings even lower.

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Starr’s team of prosecutors, of course, see it differently. They maintain they are just trying to get at the truth; they do not accept that the public would merely shrug aside evidence that the president flatly lied before a grand jury.

Some legal experts agree.

More Pressure Seen Put on Clinton

“This case is still fraught with peril for Clinton,” said attorney Bradford A. Berenson. Lewinsky’s agreement to cooperate “dramatically raises the pressure on the president,” because she, and presumably her mother, will directly contradict his account.

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Until now, many have assumed the president has not been truthful and forthright, but no one has been in a position to directly refute his story.

“I know if I were his lawyer,” Berenson said of the president, “I would stress there is nothing more dangerous than going before a grand jury and testifying untruthfully.”

Other lawyers caution Starr’s case may be stronger and broader than just lies about sex.

“I guarantee you there are a few witnesses who have come forward that the public doesn’t know about,” Berenson said. “Now, it looks like he [Clinton] may be facing a few bad weeks of publicity, but not enough to face impeachment. But Starr may have other evidence that shows a pattern of perjury and obstruction of justice. We just don’t know.”

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Still, the verdict will come from the public, not from the grand jury.

Duke University law professor Walter Dellinger, a former Clinton administration lawyer, argued that the framers of the Constitution did not want judges or grand juries to be reviewing the actions of the president.

“The framers understand that taking action against the president was a profoundly political decision, and they put that responsibility quite deliberately in the House, the body that was most accountable to the people,” Dellinger said.

In the spring, Republican leaders in the House said they were not anxious to receive an impeachment report from Starr. And with the fall elections looming, members of Congress--other than die-hard Clinton foes such as Rep. Bob Barr (R-Ga.)--show no signs of rallying to the cause of impeachment.

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“We’re just watching and waiting,” said a Republican staffer at the House Judiciary Committee Tuesday.

Democratic activists say a GOP focus on impeachment will help the Democrats in the fall, and could help swing the 11 seats needed to give them the House majority again. It was noted that while Starr was making news by negotiating for Lewinsky’s testimony Monday, the president was at a town hall meeting in New Mexico on the future of Social Security.

In the weeks ahead, Lewinsky’s cooperation will refocus the case as a classic “he said, she said” dispute, one that could prove embarrassing, but not fatal for the president.

In such a clash, doubt often wins out. In 1991, law professor Anita Faye Hill testified under oath before millions of TV viewers and powerfully asserted that she had been sexually harassed by her boss, the chief of the federal agency that enforced the laws against workplace harassment.

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Opponents of Supreme Court nominee Clarence Thomas believed her charges would kill his candidacy. But after Thomas flatly denied her charges under oath, the Senate, despite its doubts, voted to confirm him to his lifetime appointment on the high court.

Times staff writer Marc Lacey contributed to this story.

Express your thoughts on the Monica S. Lewinsky matter with an informal survey and an ongoing discussion on The Times’ Web site. Go to: https://www.latimes.com/scandal


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