Civil Tone Helped to Close the Deal

The deal between Bill Clinton and the office of his old nemesis, Kenneth W. Starr, developed quickly and even civilly--chiefly in the last three to four weeks--because both sides saw it as beneficial.

Independent counsel Robert W. Ray, Starr’s successor, had seemed hellbent on getting an indictment of Clinton soon after the president left office, so much so that he insisted on putting Monica S. Lewinsky through the rigors of another secret interrogation in his office on Dec. 8.

Her Washington attorney, Plato Cacheris, thought formal charges against Clinton were sure to follow late this month. “But we never heard from [Ray] again,” Cacheris recalled Friday. He figured something was up.

Despite the ill will that had characterized the long Lewinsky investigation and subsequent impeachment battle in 1998 and 1999, Clinton’s private lawyer, David E. Kendall, and Ray found that they had similar thoughts.

Neither would disclose Friday who initiated the first conversation, but both shared a common objective that would have been unheard of in the days of the deep personal bitterness between Kendall and Starr, when each side suspected the other of inflaming the public and press for their own purposes.

Kendall found that Ray, Starr’s cool but approachable former deputy, had the background of a knowledgeable prosecutor that Starr never had. Both sides wanted the protracted and painful investigation to end.

Moreover, Clinton had no objections to entering into a settlement while he still was in the White House--a point that Ray insisted on--even on the last full day of his administration.

So face-to-face meetings earlier this month between Ray and Kendall, supplemented with phone calls, went “pretty brisk,” according to Ray’s senior deputy, J. Keith Ausbrook. The “final print,” said Ausbrook, was finished at midmorning Friday, just hours before the deal was announced.

The agreement was all the more surprising given that it was negotiated by two men who didn’t know each other. Kendall and Ray “had to establish a relationship,” Ausbrook said. Yet there developed none of the invective so noticeable in the Kendall-Starr clashes.

In a letter hand-delivered to Ray on Friday, Kendall reviewed that “we have had many discussions in recent days, both in person and by telephone.” After stating that Clinton believes the agreement is “in the best interest of the country and his family,” Kendall added:

“We know that you too seek to do what you believe is best for the country, and we appreciate the way in which you are discharging your responsibilities under the Independent Counsel Act.”

Kendall also made repeated trips to Little Rock, Ark., to meet separately with the ethics committee of the Arkansas Supreme Court to get its consent to making settlement of the panel’s disbarment suit against Clinton part of the overall agreement. Clinton would relinquish his license to practice law for five years and would pay a fine of $25,000.

Cacheris and several other legal experts generally agreed Friday that the settlement benefits both sides as well as the country.

The outgoing chief executive, by agreeing that he had given “false” statements during his deposition in the Paula Corbin Jones sexual harassment case, hardly more than he had conceded in the past, was able to avoid the agony and heavy expense of fighting an indictment in federal court as well as the possible permanent loss of his law license.

For his part, Ray was able to tie the Lewinsky inquiry up in a neat bundle, with serious admissions by Clinton, as the last aspect of the seven-year-long Whitewater investigation.

And by dropping possible charges of perjury and obstruction of justice, Ray avoided bringing a criminal prosecution that he probably could not win in court.

“It’s a great deal for Ray and a good deal for Clinton,” said Pamela Stuart, a defense lawyer and assistant U.S. attorney in Washington. “A D.C. jury was not going to convict Clinton, and Ray would have emerged with egg on his face.”

Former federal prosecutor E. Lawrence Barcella said that Clinton did not admit much in the deal.

“He admitted in essence what everyone already knew. He had said before [that] he was trying to conceal his relationship with Lewinsky without actually lying about it,” Barcella said. He added that Clinton spared himself “the tremendous financial and psychological toll” of fighting a criminal charge. “Winning an acquittal isn’t worth it.”

Perjury and obstruction are hard to prove in criminal courts. All the jurors must be convinced that the defendant knowingly lied and that his false statement had some actual or “material” effect on the outcome of the case.

In the Jones case, U.S. District Judge Susan Webber Wright ruled that Clinton’s evasive statements about Lewinsky were not material to Jones’ claim that she was sexually harassed by Clinton when he was governor of Arkansas. Later, Wright dismissed Jones’ case entirely.

If Clinton had been indicted, his lawyers would have asked a judge to throw out the charges on grounds that his false statements were not material to the outcome of the Jones case.

The agreement announced Friday looks as though it was carefully negotiated, word by word. And Ausbrook, Ray’s deputy, said that all the fine print was important.

Clinton, for example, did not admit that he actually had lied. Rather, he said that he “knowingly gave evasive and misleading answers” to Jones’ lawyers “in an attempt to conceal . . . the true facts of his relationship with Ms. Lewinsky.”

He also agreed that his misleading answers had violated Judge Wright’s order allowing Jones’ lawyers to question him about other women in his employment as governor or president.

George Washington University law professor Stephen Saltzburg said that the deal also has benefits for incoming President George W. Bush. The new president “will get a fresh start. If Ray had gone ahead with an indictment, [Bush’s] first press conferences would have been occupied with talks of pardons and Bill Clinton,” said Saltzburg, formerly an assistant independent counsel. “Now, it’s no more Monica. No more Paula Jones. No more independent counsels. It’s all gone.”