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.