Starr sets precedents with each step of his duty Independent counsel is essentially a fourth branch of government

Report Goes To Congress

September 10, 1998|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Independent counsel Kenneth W. Starr's report to Congress yesterday on "grounds for an impeachment" of President Clinton is a historic first -- an unprecedented opening for the most serious kind of conflict the Constitution allows at the top of the government.

Never before has a federal prosecutor, working within one branch of the government but beholden to none, set off a proceeding that could end a presidency.

Two other presidents have been drawn into impeachment battles. But Clinton is the first to be put to that test by a single official who is, in a sense, a fourth branch of government all by himself.

That, apparently, is just what Congress had in mind in 1978 when it gave "independent counsels" the job of investigating and prosecuting presidents and other top officials suspected of criminal wrongdoing.

Congress was seeking to avoid the conflicts of interest of having that prosecutorial job done -- as it used to be -- by the Justice Department, within the executive branch that is largely the president's to control.

But before Starr, no independent counsel named under the 1978 law had investigated a president for suspected crimes.

Starr is thus setting precedents with each step in carrying out the unique duties spelled out in the 69-word "impeachment" paragraph in that law, embodying sweeping power.

That section orders an independent counsel to "advise the House of Representatives of any substantial and credible information" that the prosecutor, in investigating top officials, has uncovered and that the prosecutor believes "may constitute grounds for an impeachment."

None of those phrases is explained, and this part of the law has never been tested in court. So it has been mainly up to Starr to decide what to report to Congress to set off a possible impeachment of Clinton.

The 1978 law comes out of the Watergate experience -- the scandal that shook the government to its foundations in 1974 when President Richard M. Nixon ordered the Justice Department to fire the designated prosecutor who was investigating Nixon's White House. The firing itself later led to a move to impeach Nixon, but he quit before that process reached a conclusion.

Nixon, made uncomfortable as the prosecutor moved closer to Oval Office operations in covering up a political scandal, simply had the nettlesome investigator fired in an act that came to be known as "the Saturday Night Massacre."

Congress later concluded that the "massacre" had so shattered the public's confidence in America's system of justice that it was necessary to take the investigation of presidents, and other high-ranking government officials, out of the executive branch's traditional control, and give it to independent counsels.

Starr, and others who have held the position, are technically part of the executive branch of government, in the sense that they wield all the prosecutorial powers, within their fields of investigation, that the attorney general and Justice Department would exercise.

And while the 1978 law expressly allows an attorney general, or the president directing the attorney general, to dismiss an independent counsel for "good cause," such an act is likely to bring on an impeachment. So that authority may exist in name only. In practice and as a matter of political reality, independent counsels enjoy almost complete independence from any of the three branches of government.

Starr, as an independent counsel, has been in a position since his initial appointment, on Aug. 5, 1994, to seek evidence of possible crimes that could be "grounds for an impeachment," in the words of that section of the 1978 law.

He was chosen, by a special three-judge court that fills the job of independent counsel, to investigate both Clinton and Hillary Rodham Clinton, along with others, and their ties to a defunct savings and loan association in Arkansas and that thrift's involvement in a failed land development project known as "Whitewater."

No prior independent counsel has been given an assignment to investigate a president directly. No one before Starr had thus used impeachment-related powers.

But the Whitewater phase of Starr's investigation, which is still not complete, and other lesser phases of investigation also handed to him, have never seemed likely to lead to accusations against Clinton strong enough to lead to impeachment.

That threat, in fact, has arisen only in recent months, as a consequence of a new assignment handed to Starr by the three-judge court: the Jan. 16 order to investigate "whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law" in the Paula Corbin Jones sexual misconduct lawsuit against Clinton.

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