Today's Wall Street Journal:
A Winning Strategy
For Lewinsky, Starr
And the Nation
By BRADFORD A. BERENSON
Monica Lewinsky may not be fully aware of it, but there's a speeding train
heading straight for her. Now that Judge Norma Holloway Johnson has
reportedly ruled that she has no immunity from prosecution, the way is clear
for Kenneth Starr to indict her. The possibility of trial, conviction and
imprisonment certainly counsels against continuing public vilification and
provocation of Mr. Starr and should focus her family's minds on the need to
develop a new defense strategy.
Fortunately, Ms. Lewinsky's interests, Mr. Starr's interests and the interests
of the nation are almost identical: All would benefit if the investigation could
expeditiously and definitively establish the truth--whatever it is.
If Ms. Lewinsky were willing to provide the
prosecutors with the full truth as she, and perhaps
only she, knows it, she would almost certainly avoid
prosecution. The problem is that she is currently
acting contrary to her own interests. Whether
because she wishes to protect the president or
because she doesn't know how to go about
providing the truth while still protecting herself, her
current inaction is exposing her to risks of
prosecution that she doesn't need to take. There are
things she can and should be doing that would
maximize her chances of obtaining immunity or a
decision by Mr. Starr not to prosecute.
The first painful but necessary step is for her to retain new counsel. It's not
necessary to pass judgment on the representation that William Ginsburg has
provided thus far to recognize that he is in no position to execute the
complex series of steps that are now necessary to get Ms. Lewinsky out of
harm's way. Many of these steps will require that her counsel have personal
credibility and a good relationship with Mr. Starr's prosecutors, which Mr.
Ginsburg obviously lacks. They may also require a lawyer, unlike a lifelong
family friend, who is prepared to get tough with Monica.
A new lawyer would have to do two things immediately. First, he would
have to re-establish contact with Mr. Starr's office. This initial contact
would have three purposes: 1) to alert the independent counsel that Ms.
Lewinsky has decided to break with the past and take a new approach with
the prosecutors, 2) to secure a promise from Mr. Starr not to prosecute
until counsel has had a chance to work with her and with Mr. Starr's office,
and 3) to find out specifically what aspects of the truth the prosecutors
believe Ms. Lewinsky has been withholding and what the basis is for their
belief. Mr. Starr's prosecutors would likely be receptive to such an
approach and, assuming they trust Ms. Lewinsky's new lawyer, should be
willing to provide the assurances and information requested.
The second step is for the new lawyer to meet with his client to review the
facts of the case in depth. This session could be rough. Contrary to the
impression left by old legal thrillers from the 1950s, counsel can represent
Ms. Lewinsky effectively only if he knows the full truth. This is no time to be
avuncular; given that Mr. Ginsburg kissed baby Monica's "little pulkes," he
may have been unwilling or unable to do what was necessary to wring a
complete and accurate account of events from her.
New Ms. Lewinsky's counsel can and should question her harshly, if
necessary, to ensure that her story will hold up under cross-examination.
Any inconsistencies with Mr. Starr's evidence, including the Tripp tapes, will
have to be explained; all unanswered questions, such as who wrote or
provided the talking points and why, will have to be answered; and
plausible explanations will have to be provided for the many strange
occurrences in this case, including the return of gifts to the White House, the
meetings with Vernon Jordan, and Ms. Lewinsky's numerous
postemployment visits to 1600 Pennsylvania Avenue.
Once Ms. Lewinsky's lawyer is satisfied that he knows the truth, he can
begin dealing with the prosecutors. If Ms. Lewinsky's former proffers were
untruthful or incomplete, her counsel should be able to secure immunity for
her by providing new information that will lead the prosecutors to reassess
her candor and the value of her testimony. If all goes well, these discussions
would culminate in a promise not to prosecute and a grand jury appearance
by Ms. Lewinsky.
If, on the other hand, counsel is convinced that Ms. Lewinsky has been
telling the truth all along and that Mr. Starr's office has simply failed to
recognize it, counsel must do everything possible to convince the
prosecutors of that fact. There are many ways to go about this, but Ms.
Lewinsky probably has one powerful option that is not available to most
people in her position: an off-the-record, in-person proffer session.
Such a session would involve an in-person interview of Ms. Lewinsky by
Mr. Starr's prosecutors under terms that would protect her against the later
use of her statements in any subsequent prosecution, either as direct
evidence or as impeachment evidence during cross-examination. She would
have an opportunity to tell her story directly to the prosecutors and to
explain any points that engender skepticism, and they would be able to ask
her any questions they wished and explore any conflicts between her
testimony and the testimony of other witnesses.
Ordinarily, prosecutors are unwilling to agree to such terms, because they
regard off-the-record proffers as giving the witness an opportunity to lie
with relative impunity. In the unusual circumstances of this case, however,
Mr. Starr's prosecutors probably would be willing to consider such an
arrangement, particularly if they trusted in the judgment and good faith of
Ms. Lewinsky's lawyer. Ms. Lewinsky is such a central witness in this case,
and she possesses so much information that cannot be gleaned from other
sources, that the opportunity to meet with her and obtain her answers, even
if they could not be used against her later, would probably be irresistible to
the prosecutors.
If she were unable to convince them of the truth of her account, they would
be no worse off than they were before, and they would have had an
opportunity to assess her demeanor and credibility as a witness prior to
making an indictment decision. If, on the other hand, she were able to
explain events to their satisfaction, they could conclude their investigation
more quickly, with greater confidence in their ultimate conclusions, and Ms.
Lewinsky would escape prosecution. She and the nation would both be
better off.
Of course, even if nothing further is done on Ms. Lewinsky's behalf, she
might still escape prosecution. But as long as there are strategies available
that might help her get on the train racing toward her or get out of its way,
she cannot afford to ignore them. With the train just around the bend, Ms.
Lewinsky and her lawyers need to be doing more than dining together on
the tracks.
Mr. Berenson is an attorney in Washington, D.C. |
