National Perspective : Courts : More Tapes, Another Prosecutor--and Another Day in Court : Trial begins today for Henry G. Cisneros, a former member of the Clinton Cabinet who is accused of obstruction and lying about payments to his former mistress.

WASHINGTON — Even as he tried to avoid political embarrassment that could have derailed his nomination to President Clinton’s Cabinet, Henry G. Cisneros was unknowingly walking into a future legal morass.

In late 1992 and early 1993, not knowing that his private phone conversations with his former mistress were being recorded, Cisneros assured her that he would continue to support her with regular payments. If the FBI asked about the money, however, she should suggest that the amounts were relatively small, as he had done, he told her.

The former HUD secretary soon will hear his words played back to him in court. In a case that exemplifies both the prosecutorial excesses of the now-expired independent counsel law and the missteps of the most investigated Cabinet in history, a federal prosecutor is bent on using the tapes to convict Cisneros of lying, conspiracy and obstruction of justice.

Jury selection begins today and U.S. District Judge Stanley Sporkin estimates that the trial will last three to four weeks. Cisneros, who resigned in 1996 as secretary of Housing and Urban Development, will be the second former Clinton Cabinet member to be tried on criminal charges. The first, ex-Agriculture Secretary Mike Espy, was acquitted by a jury in December of charges that he received $35,000 in illegal gifts from companies regulated by his department.

Cisneros, 52, now is president and CEO of Los Angeles-based Univision, the nation’s preeminent Spanish-language television network.

Lies May Have Been Immaterial

Cisneros’ defenders contend that he committed no crime. Even under oath, a lie may not be a crime if it is not “material”--that is, not weighty enough to make a difference, according to legal experts. In this case, his supporters argue, there is no proof that an admission by Cisneros that he had paid his former mistress more than $250,000 would have torpedoed his Cabinet nomination.

And there was nothing illegal about the payments themselves, which started in the late 1980s, friends of Cisneros point out. For his part, Cisneros has acknowledged inaccuracies in his statements to the FBI, but he has attributed the errors to a poor memory unsupported by any records.

Legal arguments aside, defense attorneys are counting on major weaknesses in the prosecution’s case to produce an acquittal. The government’s star witness, former mistress Linda Medlar--now known by her family name, Linda Jones--has seriously damaged her credibility by admitting in recent pretrial hearings that she told a series of lies under oath.

Jones, like Cisneros, understated the size of the payments when FBI agents were examining Cisneros’ fitness to serve in the Cabinet in late 1992. She also admitted lying in her 1994 deposition in a civil breach-of-contract lawsuit that she pressed against Cisneros when he stopped the payments, several months after taking the Cabinet post.

But most of her lies, she acknowledged in court hearings this summer, dealt with the authenticity of secret tape recordings she made of 88 phone conversations with Cisneros. Specifically, she swore to prosecutors that her tapes were untouched originals. But she later admitted that she had recopied them to delete portions that she thought were unfavorable to her.

Denying that she was seeking vengeance against Cisneros, with whom she had an affair while he was mayor of San Antonio, Jones said that she recorded their conversations only to keep him from reneging on what she said was his pledge to provide her between $3,000 and $4,000 a month.

Cisneros publicly acknowledged his relationship with Jones in 1988 as he was finishing his term as mayor and reconciling with his wife, Mary Alice.

Adding to her credibility problems, Jones pleaded guilty last year to fraud, conspiracy and money laundering in an unrelated Texas case that grew out of independent counsel David Barrett’s three-year investigation, which has cost more than $10 million. She is serving a 42-month prison sentence, which she hopes can be lightened as a result of her helping Barrett in his prosecution of Cisneros.

Besides casting doubt on the reliability of Jones, defense lawyers Brendan V. Sullivan Jr. and Barry Simon will try to convince jurors that the tape recordings--the most powerful pieces of evidence the prosecutors have--cannot be trusted.

The tapes represent “tampered, inauthentic evidence,” the defense has argued. Jones has admitted publicly that she doctored and recopied the tapes to omit “private matters” discussed with Cisneros, as well as some threats she made to persuade Cisneros to continue his monthly payments after their 1988 breakup.

Bruce Koenig, a government tape expert and former FBI analyst, has acknowledged that there are gaps on the tapes. But he told Sporkin that he found no instances where Jones had spliced together portions of different tapes to manufacture statements by Cisneros.

Rejecting defense arguments that all the tapes should be thrown out, Sporkin said that he would allow prosecutors to introduce parts of 26 recordings containing statements by Cisneros on grounds that the jury should hear his comments, even though entire tapes are not authentic enough to be played for the jury.

The defense, however, will try to convince jurors that, because of the gaps, potentially damaging statements by Cisneros cannot be understood in their true contexts.

Unflattering Picture of Cisneros

Excerpts from some of the tapes paint an unflattering picture of Cisneros. According to tape transcripts made public at the time of Jones’ lawsuit in 1994, the two were willing to accept federal officials’ knowledge that Cisneros had made certain payments to Jones but wanted officials to believe that no financial arrangement existed for the future.

“The big problem is future payments,” Cisneros said, according to one transcript. He added that he “clearly gave the impression” to Clinton aides and FBI agents screening his background that no more money was being paid to Jones.

In fact, the payments continued into 1994, a full year after Cisneros assumed his post in Washington.

At another point, when Jones asked Cisneros how he would handle that question in his Senate confirmation hearings, he replied:

“I’ll tell them what we agreed and the only person in the world who can sink me at that point . . . is you.”

Although the subject never arose in Senate hearings, FBI agents did indeed question Cisneros about the payments.

Transcripts show that Cisneros told Jones at that time: “It’s going to be dicey. The FBI is crawling all over everything.”

The good news, he added, is that FBI agents are “real bad at tracking down financial things.”

Cisneros, if convicted, would face a maximum penalty of five years in prison on each of 18 counts.