Obstructing Justice: 'Weak' Charges?

Of all the charges that independent counsel Kenneth Starr's report makes against President Clinton, it is the one with the most Nixonian resonance: obstruction of justice.

The very phrase brings to mind hush money for Watergate conspirators, the Saturday Night Massacre firing of special prosecutor Archibald Cox, and the mysterious 18-minute gap on a White House tape.

But Mr. Starr's obstruction allegations are of a different nature from those that helped bring about the first presidential resignation in US history, say a number of legal experts. While serious, they rely less on direct evidence, and more on surmise and a worst-case reading of the facts, than do other aspects of the case against Mr. Clinton.

"I think the obstruction case is the weakest of all ... the charges, actually," says Stanley Brand, a lawyer at Brand, Lowell & Ryan and a former House general counsel.

According to the Starr report, Clinton has obstructed justice at least four times in the Lewinsky matter. Allegations against the president include that he conspired with Monica Lewinsky to keep their relationship secret by allowing her to submit a false affidavit denying it; that he moved to keep Ms. Lewinsky quiet by helping her look for a job in New York; that he obstructed justice by refusing to testify truthfully for seven months, and by lying to aides; and that he tried to hide from investigators the notes and gifts he gave Lewinsky.

Gifts may be key

The hiding of gifts is one of the most serious of these allegations, involving as it does physical evidence that was under subpoena by Starr's office. The strengths, and weaknesses, of this charge are reflective of the entire obstruction of justice case against Clinton, say some experts.

That the nation's chief executive and a former White House intern exchanged tokens of esteem is beyond dispute. She gave him at least 30 gifts, including a letter opener decorated with a frog and the book "Oy Vey! The Things They Say: A Guide to Jewish Wit." He gave her about 20 gifts, from a Rockettes blanket from Rockefeller Center in New York, to an Annie Lennox compact disc and an inscribed copy of his 1996 State of the Union address.

That some of the president's presents to Lewinsky ended up back in White House hands is also beyond dispute. On Dec. 28, Betty Currie, the president's personal secretary, drove to Lewinsky's Watergate apartment and collected a box that she assumed contained Monica's gifts. Written on top of the box were the words "Please do not throw away!!!" Ms. Currie took the items home and stuffed them under her bed.

What is in dispute is whether Clinton directly ordered his secretary to retrieve the gifts, and whether by doing so they conspired to conceal their existence from Starr.

Currie's actions do seem extraordinary. It was only the second time she had ever visited Lewinsky's home, prosecutors noted.

Furthermore, Lewinsky told the grand jury that, in her recollection, Currie said she was acting on the president's orders. Here's the relevant passage from the Starr report:

According to Ms. Lewinsky, the transfer originated in a phone call from Ms. Currie that afternoon [Dec. 28.]. Ms. Lewinsky testified that Ms. Currie said, "I understand you have something to give me," or, "The president said you have something to give me."

But Currie's grand-jury testimony was at odds with Lewinsky's remembrance. The president's secretary said that while her overall recollection was hazy, Lewinsky was the one who called and raised the idea of the gift transfer.

It was a point that prosecutors pushed hard before the grand jury.

Q: And did the president know you were holding these things for Monica?

BC: I don't know. I don't know.

Q: Didn't he say to you that Monica had something for you to hold?

BC: I don't remember that. I don't.

When confronted with Lewinsky's conflicting testimony, Currie said this:

BC: Then she may remember better than I. I don't remember.

Clinton, for his part, testified that he never asked Currie to retrieve the box. And his lawyers, in a rebuttal to Starr's charges, pointed out that the president gave Lewinsky more gifts on the very day that she handed the box over. Among the presents were a pair of joke sunglasses and a pin with the New York skyline.

An impeachable offense?

The whole exchange and retrieval looks bad, certainly. But is it an impeachable offense proved beyond a reasonable doubt?

"I don't see how in the real world a prosecutor is going to prove beyond a reasonable doubt that Monica Lewinsky's version of events is correct when the president's version is supported by Betty Currie," insists a prominent Washington lawyer who is advising House Democrats on Clinton's troubles. "Why would he continue to give her gifts?" says the attorney. "You can argue the logic both ways, and in a court of law it comes down to testimony."

The evidence concerning other obstruction charges is similar. Starr alleges that the president urged Lewinsky to testify falsely, to say in an affidavit to Paula Jones's lawyers that they did not have a sexual relationship. There's no doubt that the pair discussed the filing of the affidavit. But Lewinsky does not say that Clinton directly ordered her to lie - and there is no hard evidence that the president even knew the contents of the affidavit when filed.

Some experts differ, and believe the charges would hold up in court. Consider the weekend session between Currie and Clinton, in which he went over his relationship with Lewinsky, saying things such as, "We were never alone together, right?"

Starr's report alleges that this action is witness tampering. "That seemed to be an attempt to ask her to lie for him without explicitly asking," says Carl Bogus, a professor at Roger Williams University School of Law in Bristol, R.I. "I find that episode the most troublesome item I've seen in the report."

Furthermore, Clinton may need more than legal rebuttals against obstruction-of-justice charges. The future of his presidency now is in the hands of Congress. The House is not a court, and lawmakers are likely to make a political judgment about the totality of evidence against him when deciding whether or not to pursue an impeachment inquiry.

* Part 1 of this series ran yesterday.