A separate code for the president alone Starr quest: Is Clinton above the law or governed by laws binding no one else?

August 17, 1998

AS THE independent counsel's investigation of President Clinton's personal conduct reaches a peak, citizens must search their souls as to whether they believe the president to be above the law, subject to the same laws as everyone else or held to laws that exist for him alone.

If the House of Representatives is asked to consider impeachment, this distinction will become paramount.

No one wants to think a president is above the law. In practical fact, though, he can be. His motorcade is not stopped for speeding. Others are stopped to let him speed by. It could hardly be otherwise.

Most people would say they want the president to be an ordinary citizen to the extent possible, governed by the laws and %J standards that apply to all others. Easier said than done.

By a stretch, an ordinary citizen might be accused of a crime for lying in a civil lawsuit, though in almost all cases not. Much litigation employs contradictory testimony where logic suggests someone must be lying. Normally, the verdict is the punishment.

A lie must be material to the case to be perjury. Where a judge found the matter not material and the lawsuit not fit for trial, there can be no crime of perjury, subornation or obstruction of justice. At least, not for an ordinary citizen. Any crime committed is a crime only if the president does it.

Morally, the president is indeed often held to a higher standard than others. A commentator will say, the president should not lie but be a role model for youth. The same commentator might, on another occasion, suggest that all politicians lie, but the president should not. (The same commentator might think of presidents who did.) That distinction cannot be found in law, however, unless we put it there.

Most ordinary citizens targeted for investigation are not called before a grand jury. Their Fifth Amendment right to avoid self-incrimination is automatic.

Mr. Clinton has the same legal right to invoke it as everyone else but must feel that, politically, he cannot afford to. His visit to a grand jury as a presumed target of inquiry, for the apparent purpose of trapping him in perjury, therefore amounts to law for the president alone.

The U.S. public already had a gut feeling that privileges stripped from Mr. Clinton left him without rights they assumed they have. Drafting the White House staff as prosecution spies on Mr. Clinton's private behavior, for conduct that was not criminal when observed, subjects him to the sort of surveillance that no one else outside of prison endures.

This probably explains the opinion polls' steady support of Mr. Clinton. It may be misleading -- not approval of his presidential performance or belief in his innocence of scandal, so much as indignation at the treatment accorded him.

Two tests of whether an offense is impeachable and worth investigation should be whether it undermines the law of the Republic, and whether it would be a crime if anyone else did it.

If Kenneth Starr has found such an offense, it has not leaked.

! Pub date: 8/17/98

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