Prosecutors, White House Will Treat Jurors Gingerly

With their bruises still fresh from the House impeachment process and the stakes of the next round even higher than the last, the White House has dropped the aggressive strategy it employed in the House and adopted a decidedly more deferential approach toward the Senate.

The president continues to insist on his innocence, and his team is committed to a vigorous defense. But his lawyers, political advisors and spokesmen have toned down their tactics in hopes they can avoid offending senators.

“They’re the jury. We don’t want to anger the jury,” said one senior White House official.

The lawyers are planning a defense that focuses on debunking the charges of perjury and obstruction of justice rather than focusing on arguments that clearly infuriated House Republicans, such as White House allegations that the tactics of independent counsel Kenneth W. Starr were improper.

Rather than calling for a vote on dismissing the case at the outset of the trial as they originally wanted, the president’s lawyers bowed to senators’ request that they delay their motion--at least until after both sides’ opening arguments and questions from members of the Senate.

Clinton’s political advisors and aides--who spoke with venom about his accusers during the House proceedings--have maintained a respectful chorus of comments that they expect the Senate to produce a “fair and expedient” process.

The White House has made some exceptions to its kid-glove approach, taking a few shots at the House managers, the prosecutors in the trial. But many senators have criticized the House for trying to influence the Senate process, so White House spokesman Joe Lockhart’s comments Tuesday that the House Republicans’ brief “reads like a cheap mystery” is unlikely to be perceived as an attack on the Senate jury.

So far, reviews from Republican and Democratic senators are good.

In contrast to the furious reactions from House Republicans to various White House filings during the impeachment proceedings in that chamber, Republican senators had little criticism for the 13-page outline of the president’s defense sent to the Senate on Monday.

Sen. Mike DeWine (R-Ohio) agreed that the White House is taking a less confrontational approach toward the Senate.

“This is just a different setting. . . . I fully expect the White House to be aggressive when it starts. But that’s fine. It’s a trial.”

But even friends of the president cautioned that as the trial goes on, the White House will be hard-pressed to avoid the dangerous pitfall of defending the president through technicalities and legal hairsplitting.

“When push comes to shove, the president’s defense is a very technical defense. They may go into this thinking [that] they’re going to argue the broad propositions,” said Harold M. Ickes, an attorney and former deputy chief of staff. “But at bottom, don’t they have to go back and rely on very stringent definitions and fine shadings of meaning and intent? How do they articulate that without seeming to be that technical? I don’t know that they can.”

Observers warned that, since this is an impeachment and not a legal trial, winning on technicalities may not be possible.

“I think they could win the legal battle but lose the impeachment battle,” said Paul Rothstein, a Georgetown University law professor who specializes in governmental corruption. “There are technical legal defenses that in a court of law would get them off the hook that probably would dig their grave deeper with the senators.”

White House officials said that the general shape of the president’s defense can be derived by looking at Monday’s statement and reviewing the presentations by White House Counsel Charles F.C. Ruff and special counsel Gregory B. Craig before the House Judiciary Committee last month, which the White House argues did not get enough attention at the time.

Since the president’s team has 24 hours to make its arguments, probably spread over several days, they likely will stage a more detailed defense than in the House committee, outsiders who are advising the White House said.

The tone of the White House presentation is expected to be set by Ruff, whose plain-spoken courtly defense of the president before the House panel won praise even from the president’s harshest critics.

Monday’s statement reflects the same conversational style of argument, which the president’s lawyers hope will be persuasive with the senators. It tries to dispel a myth that Clinton denied a sexual relationship in his Aug. 17 grand jury testimony. It does so by quoting Clinton’s admissions of “inappropriate intimate contact.” It does not mention the contradictions between the president’s and Monica S. Lewinsky’s versions of when the encounters happened, how frequent they were and details of the physical contact.

As for the charge that Clinton obstructed justice by trying to hide the affair, the lawyers refer to Lewinsky’s grand jury testimony that “no one ever asked me to lie and I was never promised a job for my silence.” On the question of whether her return of a box of presents from Clinton shows an effort to obstruct justice, the lawyers point to testimony from presidential secretary Betty Currie that it was Lewinsky’s idea to give back the gifts.

But while the general outlines of the defense are clear, the final structure of the arguments will depend on how the prosecution presents its case and whether there are any surprises, White House officials said.

If the House managers play hardball, the White House is prepared to refute the approach with a more attack-dog approach. In that case, the president’s top personal lawyer, David E. Kendall, likely will take the lead, as he did in the House procedure, when he denounced Starr’s tactics as inappropriate and illegal.

Since senators are not regular jurors, winning their votes against conviction is more like winning votes for a legislative package--but without a lot of the political tools administrations usually use.

Thus, the White House will have to keep in close touch with its friends in the Senate and adjust its defense to respond to the reactions of the senators.

“An extended trial would underline just how close to the legal edge Clinton skated. Maybe the president didn’t commit perjury, but he came right up to the edge . . . and he knew it. On obstruction of justice, he may not have told [Lewinsky] beyond a reasonable doubt to give the gifts back but what he was doing is susceptible to that interpretation,” Rothstein said.

“You don’t have to commit a crime to be impeached, you just have to do something that the Senate and the people of the United States think is quite wrong.”

Times staff witer Edwin Chen contributed to this story.