Clinton Weighs Response to Starr Subpoena

Subpoena is the first ever to summon a president before a federal grand jury.

After six months of silence, President Clinton is likely to share his version of the Monica Lewinsky story with special prosecutor Kenneth Starr - in some form - as soon as this week.

Faced with a subpoena from Mr. Starr's office, Mr. Clinton's lawyers must weigh the risks of legally challenging it, going along, or negotiating an alternative.

For now, it appears their choice is to seek agreement on an alternative, either by having Clinton provide written answers to questions by Starr or agreeing to a videotaped deposition at the White House that would then be played before grand jurors.

Legal experts are sharply divided as to the constitutionality of the subpoena - the first ever summoning a sitting president before a federal grand jury. But they agree that cooperating may be a smart move for Clinton, though not without risks.

In the first place, cooperating with the special prosecutor will play favorably with Congress - the eventual recipients of Starr's findings and the determiners of whether to take up impeachment hearings against the president.

It also looks good in the eyes of the public, which, although not very magnanimous toward Starr, would think less of a president trying to stonewall an investigation. "There would be a great deal of popular disapproval of a president who refused to work out an agreement with the special prosecutor," says Mark Tushnet, a law professor at Georgetown University here.

But there is a downside for the president, and that comes from not knowing what evidence the prosecutor has gathered so far, and consequently, how strong the prosecutor's case is. Also, by testifying, the president goes on the record for the first time since the Paula Jones deposition earlier this year, exposing himself to potential inconsistencies in testimony.

Starr has requested the president to testify before his grand jury several times, but Clinton has always declined, establishing a strategy of just toughing out the investigation. The special prosecutor is trying to determine whether the chief executive lied under oath about his relationship with the White House intern and whether he encouraged others to lie as well.

A shift in tactics became public last Friday, when White House spokesman Mike McCurry told reporters that the president's private attorney, David Kendall, would "work with Mr. Starr's office to ensure that the grand jury gets the information it needs."

No agreement to testify has been nailed down yet, but one thing Clinton does not want is the humiliating experience of traipsing down to the courthouse to appear before a grand jury - a degradation of the office of the presidency and a precedent for future presidents.

If the president provides written answers or undergoes a videotaped deposition, he at least has his attorneys present. If he appears before a grand jury, his attorneys are not allowed in the room when he testifies.

No president has ever been subpoenaed to testify before a federal grand jury. President Ronald Reagan gave written answers in the Iran-contra investigation, and George Bush, then vice president, gave a deposition in the probe. President Nixon was subpoenaed to hand over the famous Watergate tapes, though not to testify himself. He challenged the subpoena, but the Supreme Court ruled that he must comply. The tapes' release led to Nixon's resignation.

Clinton was subpoenaed to testify for the trials of Whitewater investigation figures. And earlier this year, he testified in response to a civil subpoena in the Paula Jones case. A recipient of a civil deposition is not required to testify before a grand jury.

IT'S by no means sure that the president would have to answer a subpoena from Starr. Those who say he wouldn't point to the constitutional separation of powers between the judiciary and the chief executive.

They argue that only the House of Representatives, through an impeachment proceeding, would have the right to subpoena a president in this case. The president's lawyers are studying the constitutionality of a subpoena.

But it could be argued that as special prosecutor, Starr is acting on behalf of the United States and indeed has the authority to subpoena what - to any other prosecutor or judge - would be his superior. Starr also has some precedent working for him: the successful subpoena of the Nixon Watergate tapes.

Yale University constitutional law professor Akhil Amar says the president should not have to answer a Starr subpoena, but he also believes that, were the president to take up the legal battle, he would lose. "After Watergate, the courts think of themselves as the hero, and presidents are not to be trusted," he says. In this case, the president would be right not to fight a subpoena, but to work out some alternative. The rule of thumb, says Professor Amar, is "if you're going to lose, don't fight."

Starr's issuing of a subpoena is another sign that his investigation is reaching its final stages. This past week saw a flurry of activity, with the special prosecutor employing two grand juries at once to hear testimony from at least five Secret Service witnesses. Betty Currie, Clinton's personal secretary, wrapped up her grand jury testimony Wednesday.

Other than the president's testimony, the last big open issue in the investigation is whether Ms. Lewinsky will testify. Immunity negotiations have bogged down, and it's expected that if no immunity deal is reached, the prosecutor will move to indict Lewinsky.

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