Getting Back To Monica

By ERIC POOLEY

In the annals of Clintonian scandal, March 1998 may be remembered as a month of sideshows: the rise and fall of Kathleen Willey; a putative White House plot to smear Ken Starr's deputies; a wave of supposed Clinton paramours rising from the files of the Paula Jones case; a campaign-plane flight attendant named Cristy Zercher who says she was groped by Clinton but came so late to the party that her tabloid story fetched only about $50,000. But now, 11 weeks after the independent counsel began his search for misbehavior and cover-up, the scandal is finally circling back to where it began--Monica Lewinsky.

Starr has always known that to make a credible case against Clinton he must go beyond sex to prove a pattern of obstruction. Sources tell TIME that the prosecutor appears to be close to wrapping up just such a case and reporting it to Congress. "Starr has enough to send up to the Hill," says a lawyer familiar with the case. After gathering documents, E-mail and testimony from Lewinsky's confidantes, Starr and his deputies may have gathered sufficient corroborating evidence to prove that what Lewinsky said in her tape-recorded conversations with Linda Tripp was more than a smitten woman's fantasy: that Lewinsky had a sexual relationship with the President and the two tried to persuade people in the know to cover it up.

Even without Lewinsky's direct testimony, the lawyer says, Congress will have strong circumstantial evidence that suggests Clinton oversaw Lewinsky's job search and tried to coach the testimony of a potential witness, his secretary, Betty Currie. But it is difficult to imagine Congress moving to impeach a wildly popular President with nothing more than tantalizing but indirect facts. Which is why Starr has set his sights on two eyewitnesses whose testimony could seal the case. One of them, a key source tells TIME, is a Secret Service agent who has told colleagues he saw Clinton and Lewinsky in a compromising situation. The existence of this agent was first reported in January by the Dallas Morning News, but the paper retracted the story after its primary source recanted. The TIME source says Starr has reason to believe that the story is true and hopes to compel the agent to testify. This would prove that Clinton perjured himself when he denied having sexual relations with Lewinsky in his Jones affidavit and provide a motive for Clinton's and Vernon Jordan's attempts to find Lewinsky a New York City job.

If there is an agent with a tale to tell, he could prove to be the one credible witness in a case in which many of the damning allegations so far made public have come from people with suspect motives. But it's far from clear that the agent will ever have to come forward. In February, Justice Department lawyers representing the Secret Service refused to make agents available to Starr's grand jury, arguing that Clinton's bodyguards are covered by legal privilege because they need the President's confidence to do their jobs. "Agents should not be forced to testify about things they see or hear while they're acting in their protective capacity," says a senior Justice official. In negotiations with Justice officials this month, Starr's team has countered that those agents who aren't specifically acting as bodyguards but are simply in a position to observe the President's movements and visitors--particularly if these figure in a criminal case--can't use the security argument. The talks are continuing, but neither side has budged. "We are at the end of the process," insists a Justice lawyer. If there is no compromise, Starr's office is likely to ask the federal judge overseeing the case, Norma Holloway Johnson, to make the agent testify. If Starr loses in court, he could kick the matter up to Congress, which also has the power to compel the agent's testimony.

The other key witness being sought by Starr is Lewinsky, because she can fill in important gaps in the obstruction case. Lewinsky, for instance, can say who she saw and what she discussed at the White House on Dec. 28, 11 days after she received a subpoena in the Jones case. And only Lewinsky can reveal the author of the mysterious "talking points" she handed to Tripp, urging Tripp to lie under oath in the case. Monica is the biggest chunk of Starr's remaining work, says a lawyer familiar with the case. While the tapes are powerful, there is no substitute for a live witness.

In February the former intern made a written offer to testify about her relationship with the President in exchange for immunity from prosecution on perjury charges. But in March, Lewinsky's lawyer, William Ginsburg, broke off negotiations with Starr, claiming that Starr had reneged on the deal. Judge Johnson's ruling in the matter is imminent. If she decides the deal is binding, Starr will quickly bring an immunized Lewinsky before the grand jury. If the deal is voided, Starr could use the threat of prosecution to compel Lewinsky's testimony, perhaps by indicting her for perjury, then demanding that she pass a lie-detector test as a condition of any plea bargain. If Lewinsky and Ginsburg refuse that deal, it could set the stage for a protracted Lewinsky trial that could drag the investigation into next year.

Because Lewinsky's credibility is already so battered, Starr's investigators have been working to find outside corroboration for every possible aspect of her story. Since Lewinsky told Tripp that she'd bought certain gifts for Clinton, Starr issued a subpoena in March to a Washington bookstore; its sales records show that Lewinsky purchased a copy of Vox, Nicholson Baker's postmodern novel about yuppie phone sex. To Starr the move was routine evidence gathering, the authentication of a small detail in Lewinsky's story. But the subpoena caused an uproar among booksellers and free-speech groups. Author Baker charged that Starr was "undermining the Constitution" and demanded that he "get down on his knee pads and beg the country's pardon."

Starr ignored the fracas and focused on the goal of sending his report to Congress before the midsummer recess. In meeting that deadline, he faces another stumbling block: the refusal of White House aides Bruce Lindsey and Sidney Blumenthal to answer certain questions about their discussions with the President and First Lady because, the White House claims, the conversations are covered by Executive privilege.

Presidents since George Washington have invoked some form of the doctrine, which protects the White House from having to reveal communications between the President and his advisers in matters of national security or "legitimate public interest." Executive privilege has always been a murky point of law--it is implied, not specified, in the Constitution--but it became downright sinister during Watergate when Richard Nixon invoked it in an attempt to block release of his secret Oval Office tapes. Ever since, Executive privilege has been associated with Executive cover-up, which tends to overlook the legitimate argument that a President has a right to unfettered advice. But prosecutors and Congress have countervailing rights, and to prevail in a privilege claim, a President must show that he has a "compelling need" to keep something secret--a need that outweighs another part of government's right to know.

That battle was joined last week behind the closed doors of Judge Johnson's courtroom. The White House is trying to make the case that certain conversations about the Lewinsky probe amount to official business--a reversal of the usual White House claim that the Lewinsky matter is private and has nothing to do with the President's job. Starr must show he is not merely fishing but knows what he wants to find and where he expects to find it. He must demonstrate that the material he seeks is relevant to his probe and that he can't get it any other way.

Clinton's argument seems shakier than Starr's, but White House aides from Washington to Africa, where the President was traveling last week, insist he is not making this legal maneuver to push off Starr's investigation. "We want to get this [investigation] over with as soon as possible," says Clinton adviser Rahm Emanuel. But delay has been enormously helpful to Clinton. By refusing to explain his relationship with Lewinsky, he created a time-release capsule that aided the public's digestion of the scandal, giving people the leisure to sort out which parts of the President's character are important and which are not. And by slowing Starr's investigation until after the Jones case comes to trial next month, Clinton could use the not-guilty verdict he expects to argue the pointlessness of Starr's efforts. Of course, even if Starr wins the privilege fight, the prosecutor might not gain all that much. Clinton aides can simply take a page from their boss and say they don't remember.

--Reported by Jay Branegan, Viveca Novak and Michael Weisskopf/Washington

With reporting by Jay Branegan, Viveca Novak and Michael Weisskopf/Washington