Fight To The Finish

By Nancy Gibbs/Washington

The rules of dueling provide that the accused party gets to pick the time, the place and the weapons. But Ken Starr and Bill Clinton have been circling each other for months; each wants the match to take place on his own preferred ground. As long as this has remained a legal contest fought with briefs and staged in a courtroom, Starr has been winning every round. And so all year long, the President's seconds have looked for a way to move the whole bout to a friendlier venue, such as the boiling floor of the House of Representatives, where politics can be counted on to prevail over precedent and principle. That is why, sources tell TIME, for all his repeated promises to cooperate with the independent counsel, Clinton and his advisers have decided that he will refuse to appear in front of Starr's grand jury, will refuse to testify and will refuse to help Starr choose when, where or how the last battle is fought.

Last week the White House was forced to spend more time shaping the strategy, because it was losing on the law. Starr has prevailed in his challenges to force presidential confidant Bruce Lindsey and adviser Sidney Blumenthal to testify, along with Secret Service agents, despite White House assertions of special privilege. And Starr asked the Supreme Court to skip the appeals process and hear arguments by the end of this month on the whole privilege question. He also went about gathering Monica Lewinsky's bookstore receipts, fingerprints and handwriting samples, amassing evidence for the day he finally confronts her on the witness stand. Every maneuver, every victory that strengthens Starr's hand, also stiffens the resolve at the White House to refuse to say a word. There are times, Clinton confidants say, when the President fantasizes about marching down to the grand jury and saying, "Go ahead. Take your best shot." But that is pure swagger: his lawyers and the President know this must never happen, because they have spun out all the elaborate scenarios for how this drama might play out and concluded that Clinton has everything to lose by talking and everything to gain by his silence. The more he defies Starr, the more he confounds the whole legal process, the more likely it is that the battle will tumble into the greasy impeachment machinery of the House of Representatives, where Clinton has wanted it to land all along.

Clinton, of course, is a talker, and when this whole siege began, he broadcast his desire to tell "more rather than less, sooner rather than later," as he pledged to reporters on Jan. 22. He believed he would take a hit and move on. At the time, his political advisers couldn't imagine him refusing to talk. "The fact is, most people don't believe him already," a Clinton adviser said in February. "If he doesn't go to a grand jury, it's the kiss of death." But even by then the lawyers had taken over, and they made it clear that they had other ideas.

In his first statement, spokesman Mike McCurry wanted to deny that Clinton had a "sexual relationship" with Lewinsky, a source told TIME. But lawyers directed him to use vaguer language. As a result, he told reporters that Clinton had no "improper relationship" with the intern. As for shaping Clinton's own statements, the crucial meeting came within 48 hours of the scandal's breaking in January, when the President met with lawyers, including David Kendall, and for the first time laid out the details of his relationship with Lewinsky. It is unclear what part of his presentation spooked the lawyers, but it coincided with the initial media inquiries about Lewinsky's weekend visit to the White House in December, after she had been subpoenaed in the Paula Jones case. Whatever the reason, the lawyers concluded that silence is golden, even as McCurry and others kept alive the possibility that Clinton would one day tell his story publicly just to avoid the appearance of stonewalling.

It becomes harder for the White House to maintain a veneer of cooperation now that Starr has made five requests for Clinton to go before the grand jury and been turned down every time. But as the White House team plays out this decision, they have concluded that it carries little legal or political risk. Clinton can refuse to have anything to do with the grand jury on the grounds that the whole process is rigged, a political witch hunt in which Starr and his team aren't playing by the rules. "If the guy is willing to break the law and leak information out of the grand jury to pursue Bill Clinton, there are serious reservations about whether we should cooperate," says a Clinton aide. Clinton's position has hardened as his lawyer Kendall keeps contacting Starr, mainly through letters, and expressing concerns about Clinton's possible testimony and Starr's tactics, only to have those concerns dismissed.

There is also not much legal risk in Clinton's refusal. Faced with a recalcitrant witness, all a prosecutor can do is ask a judge to cite him for contempt of court. But the White House is counting on the presumption that a sitting President cannot be indicted; he can only be impeached. And this brings the Clinton team to the clever part of the strategy. A contempt charge would probably have to be handled through impeachment, which means the whole battleground shifts into the House of Representatives. However much more confrontational House leaders have been in recent weeks, however often Newt Gingrich refers to Clinton's "crimes," the White House is confident that a popular President reigning over a strong economy in an election year would have the upper hand facing charges that seem to involve consensual sex.

Because Starr is making all the same calculations, however, Clinton advisers are preparing for what one calls Plan B: Starr indicts Lewinsky for conspiracy to commit perjury and obstruction of justice, and Clinton is called to appear as a witness at her trial. In open court, it becomes harder for the President of the U.S. to refuse to testify. After all, he testified earlier in the Paula Jones case, as well as in two Whitewater trials in Arkansas.

A refusal to appear would take all the lawyers into uncharted legal waters. Justice Department guidelines may prohibit Starr from calling Clinton as a witness, since he himself could be a target of the same obstruction charges. And once again, if he refuses, Starr can't just throw him in jail with Susan McDougal. Perhaps the most relevant precedent comes from Watergate, where the prosecutors decided not to even try to subpoena Nixon. Prosecutors in that case feared that it would be seen as overreaching; they had the tapes and John Dean's testimony, which meant they didn't need Nixon so much; and, finally, they weren't sure what they would do if Nixon said no.

Starr faces the same question and in a sense is pursuing a similar strategy. He is building the strongest case he can, on the basis of the Linda Tripp tapes and Lewinsky's computer hard drive, her notes and phone records, her colleagues' recollections, her credit-card bills and bookstore receipts, trying to construct a narrative that will be overwhelming even if both she and Clinton refuse to talk. Starr will have the testimony of Secret Service agents, the White House entry logs, phone and pager records, and perhaps a lie-detector test if Lewinsky agrees to cooperate.

That still leaves Starr with the problem of getting that story, with all its vivid details, out into the public record. Knowing that the sex charges are unlikely to give him much traction, either with the public or with Congress, Starr appears intent on proving a White House pattern of conspiring to mislead the independent counsel through leaking, counter-attacks, obfuscation, lies and a general withholding of information. And that pattern is the sort of thing that Starr argues he has encountered time and time again since he took over from Robert Fiske in 1995. On Saturday the White House refused to hand over to Starr records of Clinton's whereabouts on specific dates last year, claiming that the request was too broad.

One way to shine the spotlight on Clinton's conduct is to name the President as an unindicted conspirator in a trial of Lewinsky. In trying to prove Lewinsky's role in a conspiracy, prosecutors would then be allowed to present evidence of conversations she may have had with Clinton regarding, among other things, efforts to alter Tripp's testimony in the Jones case or to evade the Jones subpoena for gifts Clinton had allegedly given Lewinsky. That could strengthen Starr's hand in the event of an impeachment referral to the House.

The problem with this whole approach, however, is that while indicting Lewinsky may be Starr's strongest legal option for forcing the President to tell his story, it is Starr's weakest political option. As Lewinsky's father Bernard pointed out last week, many Americans might have trouble with the idea of a special prosecutor sacrificing a pawn to corner the king. Lewinsky's lawyer William Ginsburg, in an open letter to Starr published last week in California Lawyer, wrote, "Congratulations, Mr. Starr!... You may have succeeded in unmasking a sexual relationship between two consenting adults"--which of course seems to suggest that his client perjured herself when she denied the affair under oath, but nonetheless appeals to a widespread public indifference to the whole thing. Indicting Lewinsky, warns former Reagan Justice official Stephen Saltzburg, leaves people wondering, "Is that the best you can do after spending all this time and money?"

That may be why Bruce Lindsey and Vernon Jordan--who made his fourth appearance before the grand jury last week--could have plenty to fear. Indicting a bigger fish than Lewinsky could make it much easier for Starr to force Clinton out of hiding. Lindsey's predicament last week was particularly bad: Starr wants to question him on 19 topics, and Judge Norma Holloway Johnson has agreed. Persuading her to side with Starr against Clinton's assertion of Executive privilege was no easy job. Starr could not just argue that Lindsey had been around when all the key decisions were made and therefore might know something; he had to present concrete evidence of some wrongdoing that Lindsey and adviser Blumenthal are believed to know about.

For a while, it looked as though Starr might try a pre-emptive political strike and send Congress an interim report on his findings. But a source close to the investigation ruled that out last week on the grounds that anything less than an airtight case would be dismissed by the public and buried by the lawmakers. Starr's legal options are so circumscribed, he may have no choice but to make his best case to the House sooner or later--which is just what the President's team has wanted all along.

--Reported by Margaret Carlson, James Carney, Michael Duffy, Karen Tumulty and Michael Weisskopf/Washington

With reporting by Margaret Carlson, James Carney, Michael Duffy, Karen Tumulty and Michael Weisskopf/Washington