Clinton's High-Wire Defense
His new team must strike tricky balance between legal and political strategies.
WASHINGTON — If you think impeachment is the only threat against the president, think again.
While it's by far the most serious, President Clinton faces the prospect of other legal attacks arising from the Starr investigation, including criminal indictment after he leaves office.
Add to that the possibilities of indictment of his aides and the revival of the Paula Jones sexual-harassment case, and it becomes clear why his defense team has pursued a strategy of "legal hairsplitting" - an approach the public and many in Congress have sharply criticized.
But these perils, even if less immediate than the prospect of impeachment, are imposing enough so that Mr. Clinton cannot refrain completely from what many see as legal jockeying. Instead, analysts say, the president will try to better navigate the narrow path between forthrightness, the political course many lawmakers urge as the only way to save his job, and a technical legal defense intended to keep him out of jail and avoid big fines.
To do this, Clinton this week assembled a new impeachment-fighting team with more political sense than to hit the Sunday TV talk shows arguing that the president is "legally correct" even if misleading.
The move "is a shift away from the legal strategy to the political," says Susan Fain, a specialist in criminal and constitutional law at American University here.
But at the same time, she says, Clinton's personal lawyer David Kendall and White House counsel Charles Ruff are still on board "because the legal does not go away, no matter what happens in Congress." For instance, whether the president resigns, is impeached, or finishes out his term, he can still be indicted for perjury or obstruction of justice.
After a barrage of criticism from lawmakers in both parties, the White House sent chief of staff Erskine Bowles and other top aides to the Hill this week with reassurances that they don't plan to hide behind legal mumbo jumbo.
It also hired three people experienced with Capitol Hill, including Gregory Craig, a Clinton friend and a former aide to Massachusetts Sen. Edward Kennedy (D). Mr. Craig will "quarterback" the White House anti-impeachment team and report directly to Clinton.
But don't look for the president to abandon his contorted legal defense and simply admit to Congress that he lied under oath in the Paula Jones case or before the Starr grand jury, as some lawmakers have urged him to do. If he did that, he would be even more vulnerable to these risks:
The Paula Jones case. After the president's sort-of mea culpa address to the nation Aug. 17, the judge in this dismissed case, Susan Webber Wright, indicated she reserves the right to hold the president in contempt of court for lying to her. Legal analysts see this as perhaps the most realistic legal threat and warn against Judge Wright's wrath.
Although Ms. Jones's lawyers are trying to revive the case, analysts say that even if Clinton were found to have committed perjury, this would not affect the heart of her sexual-harassment case, which would require proof that she was harmed by refusing his sexual advances.
Indictment of Clinton advisers or staff. Independent counsel Kenneth Starr is not finished with his work, and a strong possibility exists that he could indict witnesses in the Monica Lewinsky case, or in other cases still under review such as "travelgate" (the firing of the White House Travel Office staff) or "filegate" (concerning White House access to classified FBI files on key Republicans).
The danger for the president would be if these witnesses - to reduce their court costs and punishment - cut a deal with Mr. Starr in exchange for more damaging evidence against Clinton. This could affect any impeachment hearings in Congress, as well as strengthen Starr's case should he seek to indict the president.
Indictment of the president. This possibility is most talked about, but it is the least likely. Most legal analysts say Starr will not indict a sitting president, because it's unclear whether the Constitution permits it. But the statute of limitations on perjury and obstruction of justice is five years, leaving Clinton vulnerable even if he finishes his term.
Assuming Starr is not willing to fight the constitutional battle to indict the president now, he could indict him only after he leaves office and only if Starr's investigation is still active. By the time Clinton finishes his term, Starr will probably have wrapped up his investigation.
BUT what if Clinton is removed from office or resigns before the end of his term? Then Starr is waiting for him, and that, says former independent counsel Lawrence Walsh, is a possibility the president's lawyers simply can't ignore.
"Underneath all this, you don't know what Starr's going to do," says Mr. Walsh, who describes Starr as "unfair" and "politically motivated." The president's lawyers, says Walsh, should never have let him testify before Starr. "When you're being attacked by a mad dog, you don't jump in front of him."
For now, though, Clinton is choosing to emphasize the political over the legal strategy. Still, the tension between the two - which has persisted since this sordid tale began - won't go away unless Clinton comes down firmly on one side.