Independent counsel Kenneth Starr will have his work cut out for him when he calls the president's close friend, Vernon Jordan, to testify before the grand jury investigating the charges of sexual misconduct now facing President Clinton.
The independent counsel's office is examining allegations contained in the secretly-made tape recordings of Monica Lewinsky that both Mr. Clinton and Mr. Jordan encouraged her to lie about alleged sexual contact she had with the president.
Lewinsky has also been subpoenaed to appear before the same grand jury on Tuesday, but it remains unclear whether she will testify or exercise her Fifth Amendment privilege against self incrimination.
Clinton denies any improper relationship and denies ever urging anyone to lie. Jordan's denial is even broader. "At no time did I say, suggest, or intimate to [Lewinsky] that she should lie."
At issue is whether a conspiracy existed to urge Lewinsky to sign a false affidavit in the Paula Jones sexual-harassment case denying having ever had a sexual relationship with Clinton. If true, allegations of subornation of perjury and a potential obstruction of justice conspiracy are much more serious than suggestions that she and the president may have independently attempted to keep their alleged trysts private.
Investigators are also looking into whether Jordan attempted to buy Lewinsky's denial about alleged sexual contact with the president by helping her obtain a public-relations job in New York City with Revlon, where Jordan serves as a director.
Starr was already investigating allegations that Jordan played a similar role in the case of former Associate Attorney General Webster Hubbell, arranging a $60,000 consulting fee from Revlon to Mr. Hubbell at a time when he was being pressured to cooperate against Clinton.
Repeated suggestions that Lewinsky lied in her affidavit are raised in at least some of the 17 tapes secretly recorded by Lewinsky's friend Linda Tripp, during intimate telephone conversations between the two women.
It is not clear it what detail Lewinsky spoke about would-be perjury or subornation of perjury.
Even more important, the exact words, if any, spoken to Lewinsky by the president and Jordan presumably were not recorded. The best available evidence will be the memories of any participants in such conversations. Thus it may be difficult to discover not only the precise words used, but the context of any particular conversation that may have caused Lewinsky to believe that she was being urged to lie in her sworn affidavit.
The grand jury will likely struggle in the face of these limitations, and experts say subornation of perjury cases are particularly difficult to prove in court.
"The law says you can't try to cause or induce a person to withhold testimony or to testify dishonestly," says Evan Slavitt, a defense lawyer and former federal prosecutor in Boston.
But what if someone told Lewinsky this: "It would be damaging to Bill Clinton personally, to the presidency, and to the nation if reports began circulating that you [Lewinsky] and Clinton had sexual contacts."
The sentence is a true statement. And it is not a direct request for someone to lie under oath. But if the conversation took place in a certain context it could communicate a message to Lewinsky that it was almost her civic duty to sign a false affidavit.
It is a legal gray area, a region of the law where many prosecutors are reluctant to tread.
"If I don't try to persuade you and I say something that is true on its face ... that is hard to convict someone on," says Mr. Slavitt. "That is because it is hard to prove beyond a reasonable doubt that both parties knew what was going on."
"Without knowing the exact conversation, what was said and how she perceived it, a prosecution is very hard," he stresses.
There is no evidence beyond the hearsay on the tapes that either Clinton or Jordan ever said anything to Lewinsky about her sworn affidavit. The above example is cited only to demonstrate the complexity of subornation of perjury cases, not to accuse the president and Jordan of any wrongdoing. The example also demonstrates how complex the grand jury's work may become. They will have to make legal judgments based on witnesses' recollections of conversations rather than based on actual transcripts.
Miami defense lawyer Albert Krieger says the lack of a transcript makes it difficult for Clinton and Jordan to effectively rebut Lewinsky's suggestions in the tapes. "We don't know, unfortunately, the context of any alleged conversation and how it purportedly occurred," he says.
Had Lewinsky been successfully recruited two weeks ago by prosecutors and FBI agents, she might have helped agents secretly record conversations with suspected conspirators in an effort to elicit admissions that could later be used in court to prove or disprove Lewinsky's allegations. But Lewinsky refused to cooperate and her story soon broke, eliminating all possibility of using Lewinsky in an undercover sting operation.