Clinton in crisis: White House rebuts graphic Starr report

The special prosecutor's case is `a document with attitude', but Andrew Marshall argues that it is by no means watertight

THE White House fired back with its most detailed rebuttal of the charges in the Starr report yesterday, indicating that it believes it has a strong case for the defence.

Independent counsel Kenneth Starr's referral to Congress, as newspaper analysts argued yesterday, is clearly a prosecutor's summary. It is, as the New York Times said, "a document with attitude"; the President's rebuttal put this more forcefully, calling it "so loaded with irrelevant and unnecessary graphic and salacious allegations that only one conclusion is possible: its principle purpose is to damage the president".

But the White House rebuttal is a mirror image: its weakness is that it is overly legal, and hence perhaps correct but sometimes quite risible.

It may be that a good lawyer could get the President off on most of the charges. That, of course, is only part of the point. The judgement about what constitutes grounds for impeachment will be made by Congress, not by a judge or jury.

There was some relief for the Clinton legal team in a number of respects - the first signs for months that they have some confidence of their arguments, because at last they have in their hands the charge sheet. The first thing is that there are few surprises in the 11 charges, each enough on its own to warrant impeachment if the allegations were correct. There are five counts of lying under oath; five of obstructing justice, including witness tampering; and one of abusing his powers. This had been widely expected.

Most of the charges relate principally to the President's deposition to, and behaviour around, the Paula Jones sexual harassment suit. This civil suit, brought by the former Arkansas state employee, was dismissed earlier this year by a judge who said the case did not stand up. It will be all the harder to make Mr Starr's charges stick since they depends so heavily on a case that, although it is being appealed, was ruled by a judge to have failed.

The charges of perjury relating to the President's denial of a sexual relationship with Ms Lewinsky seem obvious. Partly, the defence is semantic: he stuck to a strict definition of sex used in the Paula Jones sexual harassment case, and claimed that nothing within its limits had taken place - though in his view, it excluded oral sex. He has a defensible, if more than ludicrous case here. "Literally true statements cannot be the basis for a perjury prosecution," the report says.

The other side of this perjury charge is practical. The Starr report says that he carried out acts that were within the Jones definition, based on testimony by Ms Lewinsky, and he denies this. To prove that he lied would require a detailed discussion n the House of Representatives about who did what to whom; and would pit his testimony against hers. Proving it may be too much for a squeamish Congress. And as the White House said yesterday, this charge pits Bill against Monica. "Normally, a perjury prosecution may not rest on the testimony of a single person," the rebuttal says.

On the question of whether the President lied about being alone with Ms Lewinsky, about gifts he had given her and about conversations regarding the Paula Jones trial, the President largely said that he "did not recall" or had "forgotten". It seems impossible that this should be the case; proving it is a different matter. Again, it would be partly a question of he said-she said, a highly contentious and legally dubious way of settling such a massively important case. "False testimony provided as a result of confusion or mistake cannot as a matter of law constitute perjury," says the White House.

The allegations about obstruction of justice are all based on evidence that seems circumstantially convincing, but may not stand up. The President is alleged to have asked his secretary, Betty Currie, to collect gifts he gave Ms Lewinsky. Ms Lewinsky says she suggested giving them back; and Ms Currie says that Ms Lewinsky called her to collect them. There is conflicting evidence on what actually took place.

On the question of an affidavit given by Ms Lewinsky to the Paula Jones trial, there is no evidence that the President told her to lie. The President helped get Ms Lewinsky a job in New York (an effort that involved a fantastic range of senior officials). But to prove that this was obstructing justice requires evidence of intention, which is far harder to prove, and which the White House denies was present.

Tampering with a witness - by asking Betty Currie to change her story about Ms Lewinsky's visits to the White House - is also difficult to prove.

The report says that the President's version of this "conflicts with common sense," and instead draws "the most reasonable inference". That, again, is not the strongest position. It is unquestionably true that he lied to his most senior officials, and betrayed them deeply. But whether that counts as obstruction of justice, again, may be more difficult to prove.

The final charge, of abuse of his constitutional powers, is the most difficult of all. The Starr report accuses the President of claiming Executive Privilege where none applied; but he won one of his cases before the Supreme Court, and others are still pending. He certainly misled the American people, lied to his staff, and held off testifying to the grand jury; but again, it may be more difficult to get this to stand up as an actual abuse of constitutional powers.

Matching the Starr referral with the White House rebuttal leads to a inevitable conclusion: there is quite a legal battle here, which could go on for months in a courtroom, perhaps years. The big question is whether either is politically convincing. The Starr report is by far the racier read, and the more credible as a whole, while the White House version - while evidently legally correct - seems to disregard the overall picture. It reflects the lack of any clear leadership within the White House aimed at deflecting the Starr charges in a way that would shift both the politicians and the lawyers.