OPENING ARGUMENT - Immunize Clinton, Smoke Out Reno and Let the Sun Shine In

March 14, 1998, 7 a.m.

Miffed as I am by Ken­neth Starr’s pat­tern of ig­nor­ing pre­vi­ous sug­ges­tions in this column—such as my mod­est pro­pos­al that he resign—I have some more free ad­vice for him.

To en­hance his cred­ib­il­ity with the pub­lic (which poll­sters now rank near Sad­dam Hus­sein’s), Starr should an­nounce a series of de­cisions cla­ri­fy­ing where his in­vest­ig­a­tion is headed, show­ing that an end is in sight, smoking out At­tor­ney Gen­er­al Janet Reno and ad­opt­ing a policy of open­ness—to the fullest ex­tent per­mit­ted by law—in de­scrib­ing his pro­gress and re­spond­ing to crit­ics. Starr should: * Of­fer Bill Clin­ton full im­munity from crim­in­al pro­sec­u­tion, in light of the harm that any crim­in­al tri­al of a sit­ting Pres­id­ent would do the coun­try and in light of widely shared doubts about wheth­er a pro­sec­u­tion would be con­sti­tu­tion­al.

* Make it clear that his of­fice is not in­vest­ig­at­ing any­one’s sex life ex­cept to de­term­ine wheth­er Clin­ton or someone else has com­mit­ted or en­cour­aged per­jury or ob­struc­tion of justice.

* Seek the Pres­id­ent’s sworn testi­mony, by May 1, to help de­term­ine wheth­er Clin­ton or oth­ers have com­mit­ted any such crimes with re­gard to Mon­ica Lew­in­sky, Kath­leen Wil­ley, the Clin­tons’ White­wa­ter in­vest­ment, or the loot­ing of Madis­on Guar­anty Sav­ings & Loan.

* Spe­cify that the in­vest­ig­a­tion has only two pos­sible out­comes: a re­port will either ex­plain why no ac­tion should be taken against the Pres­id­ent or de­tail grounds for the House of Rep­res­ent­at­ives to con­sider wheth­er to im­peach the Pres­id­ent.

* Stress that he would push the im­peach­ment but­ton only if he is pre­pared to present Con­gress—soon—with power­ful evid­ence of ser­i­ous crimes by the Pres­id­ent.

* Prom­ise an in­ter­im re­port to Con­gress by May 15 and vow to close his in­vest­ig­a­tion (ex­cept for any pending ju­di­cial pro­ceed­ings) by Sept. 15.

* Pledge to resign if he is pub­licly re­ques­ted to do so by Reno, and thus waive his right to ju­di­cial re­view.

* Chal­lenge Reno either to re­quest his resig­na­tion or to con­demn the White House smears of him and his ca­reer Justice De­part­ment pro­sec­utors—who are also her pro­sec­utors; Reno’s si­lence in the face of those smears has been a pro­file in cow­ardice.

* Resign from his law firm, Kirk­land & El­lis, and re­lease Pep­perdine Uni­versity from its prom­ise to hold two dean­ships open for him.

* Serve no­tice that his of­fice will re­spond pub­licly and ag­gress­ively to at­tacks from Clin­ton’s camp that seem de­signed to bury the evid­ence un­der what Starr has called ”an ava­lanche of lies.”

* Show that he does not con­done il­leg­al leak­ing of grand- jury testi­mony or sealed de­pos­ition testi­mony, by vow­ing to fire any staff mem­ber proven guilty of such leaks and by ur­ging news or­gan­iz­a­tions to ex­pose the sources of any il­leg­al leaks by Starr or any­one aligned with him.

* Chal­lenge Clin­ton (and Paula Jones’s law­yers) to fol­low suit by pub­licly ur­ging news or­gan­iz­a­tions to re­port wheth­er any of the leaks at­trib­uted to Starr in fact came from their camps.

These sug­ges­tions, of course, seem ludicrous if ap­proached with a con­ven­tion­al pro­sec­utori­al mind-set.

Pro­sec­utors don’t of­fer im­munity to their tar­gets, or de­mand testi­mony from them; they keep all their op­tions open; they don’t show their cards un­til they have to, for fear of los­ing some tac­tic­al edge in the pet­ti­fog­gers’ poker game; they are sup­posed to keep their mouths shut (though lots don’t); they don’t im­pose dead­lines on them­selves, lest they en­cour­age stalling and stone­walling by tar­gets and re­luct­ant wit­nesses. And they cer­tainly don’t of­fer to resign if so re­ques­ted by their tar­gets’ sub­or­din­ates.

But a con­ven­tion­al pro­sec­utori­al mind­set ill fits the unique con­text of an in­vest­ig­a­tion fo­cused on an in­cum­bent Pres­id­ent—es­pe­cially one whose most ra­bid at­tack dog, James Carville, has de­clared a dis­tort-and-des­troy pub­lic re­la­tions ”war” against the ju­di­cially ap­poin­ted in­de­pend­ent coun­sel and the ca­reer pro­sec­utors and FBI agents whom Starr bor­rowed from the Justice De­part­ment.

In this con­text, the steps out­lined above make per­fect sense if Starr’s mis­sion is—as it should be—to help the na­tion reach a care­ful and con­sidered judg­ment, through its elec­ted rep­res­ent­at­ives in Con­gress, as to wheth­er the Pres­id­ent has com­mit­ted im­peach­able crimes.

The Starr in­vest­ig­a­tion’s sin­gu­lar fo­cus on the Pres­id­ent is without close his­tor­ic­al pre­ced­ent: The Ir­an-con­tra in­vest­ig­a­tion headed by in­de­pend­ent coun­sel Lawrence Walsh was nev­er spe­cific­ally tar­geted on Pres­id­ent Re­agan or Pres­id­ent Bush; the Wa­ter­gate in­vest­ig­a­tion and pro­sec­u­tions pred­ated the in­de­pend­ent coun­sel stat­ute.

And that stat­ute, for bet­ter or worse, cre­ated a func­tion far more subtle and com­plex than is sug­ges­ted by the monik­er ”spe­cial pro­sec­utor.”

The in­de­pend­ent coun­sel may well have no power to pro­sec­ute the one of­fi­cial whose pos­sible crimes it is the stat­ute’s core pur­pose to po­lice: the Pres­id­ent. Con­gress im­pli­citly re­cog­nized this con­sti­tu­tion­al un­cer­tainty in ad­opt­ing the stat­ute. At the same time, Con­gress (then con­trolled by Demo­crats) wrote in­to the law pro­vi­sions re­quir­ing both that in­de­pend­ent coun­sels make peri­od­ic and fi­nal re­ports and that they ”shall ad­vise the House of Rep­res­ent­at­ives of any sub­stan­tial and cred­ible in­form­a­tion … that may con­sti­tute grounds for im­peach­ment.”

Giv­en that the im­peach­ment pro­cess is driv­en by pub­lic opin­ion, an in­de­pend­ent coun­sel whose most im­port­ant de­cision is wheth­er to trig­ger that pro­cess has a duty to do so only if he finds evid­ence of pres­id­en­tial crimes so grave as to have the po­ten­tial to per­suade the pub­lic that im­peach­ment may be war­ran­ted.

Starr could jus­ti­fy a more open and ag­gress­ive pub­lic pos­ture by mak­ing clear that the out­come of his in­vest­ig­a­tion will be an im­peach­ment re­fer­ral or noth­ing. That would render moot the pos­sib­il­ity of pre­ju­di­cial pub­li­city be­fore a crim­in­al tri­al of the Pres­id­ent. At the same time, he could be as cau­tious as any pro­sec­utor in guard­ing grand-jury secrecy and in avoid­ing pre­ju­di­cial com­ments about people who might be sub­jec­ted to crim­in­al pro­sec­u­tion.

An an­noun­c­ment by Starr that Clin­ton will not be pro­sec­uted while in of­fice would be healthy in sev­er­al ways: It would dis­pel pub­lic con­fu­sion about what is go­ing on. It would un­der­score that Starr’s job is not to put the mat­ter in the courts but rather to lay it be­fore the na­tion. It would make clear the jus­ti­fic­a­tion for Starr to set aside the usu­al ta­boo against a pro­sec­utor’s speak­ing openly with the press and pub­lic. And it would thus lib­er­ate Starr not only to an­swer crit­ics, but to ex­plain what he is do­ing and why it is about more than what one Clin­ton apo­lo­gist, writer Dav­id Brock, mock­ingly dis­misses as ”a cov­er-up of a blow job.”

A form­al grant of im­munity would also clear the way for Starr to de­mand sworn testi­mony from the Pres­id­ent. It would render in­ap­plic­able the Justice De­part­ment’s usu­al policy against sub­poena­ing ”tar­gets” of grand-jury in­vest­ig­a­tions, be­cause Clin­ton would not be the kind of ”tar­get” the policy seeks to pro­tect: He would face no risk of pro­sec­u­tion while in of­fice and no risk of pro­sec­u­tion ever, ex­cept for any per­jur­ies that he might com­mit from this point for­ward.

What bet­ter in­cent­ive could the Pres­id­ent be giv­en to tell the truth?

Starr also needs to move very fast. The na­tion is as weary of Starr’s slow slog through the swamps of Arkan­sas and Wash­ing­ton as it is of Wil­li­am Gins­burg’s in­ane prat­tling on be­half of his cli­ent Mon­ica Lew­in­sky. If Starr does not make some kind of re­port by May 15, Con­gress might not be able to deal with it ser­i­ously—ever—giv­en the elec­tion-year cal­en­dar and oth­er polit­ic­al real­it­ies.

A self-im­posed Sept. 15 dead­line for end­ing Starr’s in­vest­ig­a­tion (ex­cept for any pending lit­ig­a­tion) would show light at the end of the tun­nel without giv­ing tar­gets and re­luct­ant wit­nesses much more reas­on to stall and stone­wall than they have now.

Quit­ting Kirk­land & El­lis, work­ing full-time and giv­ing up the Pep­perdine golden para­chute are no-brain­ers. Starr should have done all three long ago. His cred­ib­il­ity has been un­ne­ces­sar­ily de­pleted by cri­ti­cisms—some fair, some not—of his vari­ous en­tan­gle­ments.

As for dar­ing Janet Reno to re­quest his resig­na­tion, it would be a good way for Starr to smoke out an At­tor­ney Gen­er­al who has as­sen­ted to every ex­ten­sion of Starr’s jur­is­dic­tion, who has nev­er pub­licly cri­ti­cized him—but who has si­lently con­doned such smears as Hil­lary Rod­ham Clin­ton’s in­defens­ible as­ser­tion that Starr is an agent of a ”vast right-wing con­spir­acy.”

Starr would be call­ing the Clin­tons’ bluff by telling them and their polit­ic­ally pusil­lan­im­ous At­tor­ney Gen­er­al, in ef­fect: You want to be rid of me? Want to take your chances on whomever the judges may ap­point to re­place me? Go ahead: Make my day.

What We're Following See More »
AVOIDS SHUTDOWN WITH A FEW HOURS TO SPARE
Trump Signs Border Deal
3 days ago
THE LATEST

"President Trump signed a sweeping spending bill Friday afternoon, averting another partial government shutdown. The action came after Trump had declared a national emergency in a move designed to circumvent Congress and build additional barriers at the southern border, where he said the United States faces 'an invasion of our country.'"

Source:
REDIRECTS $8 BILLION
Trump Declares National Emergency
3 days ago
THE DETAILS

"President Donald Trump on Friday declared a state of emergency on the southern border and immediately direct $8 billion to construct or repair as many as 234 miles of a border barrier. The move — which is sure to invite vigorous legal challenges from activists and government officials — comes after Trump failed to get the $5.7 billion he was seeking from lawmakers. Instead, Trump agreed to sign a deal that included just $1.375 for border security."

Source:
COULD SOW DIVISION AMONG REPUBLICANS
House Will Condemn Emergency Declaration
3 days ago
THE DETAILS

"House Democrats are gearing up to pass a joint resolution disapproving of President Trump’s emergency declaration to build his U.S.-Mexico border wall, a move that will force Senate Republicans to vote on a contentious issue that divides their party. House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) said Thursday evening in an interview with The Washington Post that the House would take up the resolution in the coming days or weeks. The measure is expected to easily clear the Democratic-led House, and because it would be privileged, Senate Majority Leader Mitch McConnell (R-Ky.) would be forced to put the resolution to a vote that he could lose."

Source:
MILITARY CONSTRUCTION, DRUG FORFEITURE FUND
Where Will the Emergency Money Come From?
3 days ago
THE DETAILS

"ABC News has learned the president plans to announce on Friday his intention to spend about $8 billion on the border wall with a mix of spending from Congressional appropriations approved Thursday night, executive action and an emergency declaration. A senior White House official familiar with the plan told ABC News that $1.375 billion would come from the spending bill Congress passed Thursday; $600 million would come from the Treasury Department's drug forfeiture fund; $2.5 billion would come from the Pentagon's drug interdiction program; and through an emergency declaration: $3.5 billion from the Pentagon's military construction budget."

Source:
TRUMP SAYS HE WILL SIGN
House Passes Funding Deal
3 days ago
THE DETAILS

"The House passed a massive border and budget bill that would avert a shutdown and keep the government funded through the end of September. The Senate passed the measure earlier Thursday. The bill provides $1.375 billion for fences, far short of the $5.7 billion President Trump had demanded to fund steel walls. But the president says he will sign the legislation, and instead seek to fund his border wall by declaring a national emergency."

Source:
×
×

Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.

Login