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.

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