Law experts are split over impeachment Some say Starr proves his case, while others say report falls short

September 13, 1998|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- The Starr report on President Clinton will likely move Congress toward impeachment, it now appears, if lawmakers understand the accusations to mean that the president committed acts that would do "great injury to the community."

Borrowed from an 18th-century statesman, that phrase -- or something like it -- is the difficult standard that legal and constitutional analysts said yesterday must be met if independent counsel Kenneth W. Starr's findings are to push the impeachment process forward.

Some of those analysts who have read the report agreed -- no matter what each thought personally of Starr's specific accusations -- that the findings must fit a definition of a serious abuse of power. Such abuse is one of the 11 accusations that Starr made against the president.

Congress, the analysts suggested, must first define the Constitution's vague phrase for impeachable offenses -- "high crimes and misdemeanors" -- and then decide whether Starr's findings fit that definition.

"Starr is on solid ground when he says the president lied, and he is on solid ground when he says he committed perjury," said Roscoe C. Howard Jr., a former federal prosecutor and now a University of Kansas law professor. "The question is: Is this a case in which you want to remove the president of the United States from office?"

Starr seems persuaded that his accusations meet a constitutional standard. The report says he gave Congress evidence that "may constitute grounds of impeachment," leaving it up to the lawmakers to agree or disagree.

The president's lawyers say the findings do not meet what they argue is an exceedingly tough standard for impeachment. "Nothing [in the report] even approximates such conduct," said the lawyers in a written rebuttal yesterday.

Outside analysts similarly are divided over whether the report's findings would fit any likely definition of impeachable crimes.

Roger Pilon, director of the conservative Cato Institute's Center for Constitutional Studies, said yesterday that, if he were a member of Congress, he would conclude that "the particulars [in the report], taken in totality, constitute" the two serious abuses needed for impeaching Clinton.

Those two, he said, are the president's supposed forfeiture of the public's trust in him, and his loss, as a result, of "the capacity to carry out" his duties.

What the report's specifics add up to, Pilon said, is that "this pattern of behavior [by Clinton] goes to the very character of the man: He has demonstrated repeatedly that he can't be trusted."

"He betrayed his Cabinet, his staff, his family -- what more do you need to indicate that his capacity to carry out the duties of the presidency has been destroyed?"

But Pilon went on to suggest that it was "absolutely" necessary that Starr's findings be recast, in form and in content, before they can become articles of impeachment against Clinton.

Even the report's 11th and broadest accusation, alleging an "abuse of constitutional authority," Pilon said, reads now as if it were only "a summation of the previous 10" individual claims of lying, obstruction of justice and witness tampering. It needs to be more than that, Pilon conceded, to raise the larger issues of "a fundamental breach of trust."

A differing view came from Julie R. O'Sullivan, a Georgetown University law professor who has written on impeachment issues and is a critic of Starr's use of a criminal grand jury to gather impeachment evidence. She said her "preliminary thoughts," based on one reading of the Starr findings, were that they do not meet a tough constitutional standard.

"The most comprehensive of these allegations, factually, about perjury and obstruction [of justice], do not seem to me to have a sufficient nexus to the president's public office to constitute 'high crimes and misdemeanors,' " O'Sullivan said.

She conceded that, on their face, the specific accusations are "pretty compelling," and she added: "I'm not a huge fan of what [Clinton] arguably did."

But, O'Sullivan went on, Starr "tries to create some kind of a nexus" to a constitutional standard for impeachment by using his detailed accusations to support the final broad accusation: abuse of power.

"Frankly, that part, on first reading, seems extremely unconvincing -- and you can put that in italics," the Georgetown professor said.

O'Sullivan was particularly critical of Starr's inclusion, as an abuse of power, of the president's effort to protect his aides from testifying by citing executive privilege. "I just think that is an incredible stretch," she said.

Even when legal observers are persuaded by Starr's evidence that Clinton lied or tried to obstruct justice, some argue that the Constitution may require more for impeachment.

Howard, the Kansas law professor, said he looked at that question "much, much differently" from the way he would do so in an ordinary perjury case, and suggested that it was a question that must be answered in "a much more solemn process."

Recalling the impeachment articles against President Richard M. Nixon, the professor said that was a clear-cut case of a "high crime because he was trying to undermine the constitutional system itself." The Clinton situation, by contrast, is "murky," he suggested.

The Cato Institute's Pilon thinks that specific crimes, such as perjury or obstruction of justice, do amount to "impeachable offenses" -- but only if they are of a gravity to undermine the trust in the president.

Pub Date: 9/13/98

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