A way to bring closure to the scandal

October 13, 1998|By Kenneth Gormley

IN STRADDLING the line between serving as a neutral independent prosecutor and a warmup act for Congress' impeachment exercises, Kenneth Starr may have surrendered any chance to prosecute President Clinton fairly for alleged crimes when this scandal burns out.

Mr. Starr's enthusiastic disclosure of Mr. Clinton's grand jury testimony to Congress, and its subsequent publication and broadcast worldwide, may score points on the political path leading to impeachment proceedings, but it erodes any chance of affording Mr. Clinton basic due process rights if Mr. Starr attempts to criminally prosecute the president later.

This is a perfect time for Mr. Starr to use his prosecutorial discretion for the good of the country. It is time for Mr. Starr to cut a deal with the president so that Congress can move forward.

Mr. Starr's case against the president, as a criminal matter, is weaker than ever. Prosecuting a witness for perjury (flowing from a tangential issue in a civil case) is hard enough. Prosecuting a case after this unprecedented publicity will be a nightmare.

Grand jury proceedings in the United States have historically remained secret for good reason: Throwing open such one-sided prosecutorial fact-gathering sessions to the public destroys reputations, obliterates privacy and make impossible the fair trial of defendants by jurors who had already pre-judged the case.

Unfair prosecution

It is difficult to imagine where the independent counsel would find 12 jurors untainted by the unorthodox broadcast of this grand jury testimony in the Clinton case. When it comes to other potential targets of his investigation -- including Monica Lewinsky, Betty Currie and Vernon Jordan -- Mr. Starr's ability to carry out a fair prosecution is also decimated. The fact that the secret testimony of these witnesses has now been hurled into the public airwaves and cyberspace destroys all chance of a clean criminal proceeding.

Mr. Starr's prosecutorial decision was undoubtedly made with open eyes. It was calculated to heighten the chance of removing Mr. Clinton from office, despite the blow to the criminal case. But Mr. Starr cannot have it both ways. He is either an independent counsel, who uses the grand jury to gather evidence for an actual prosecution according to due process, or he is an arm of Congress' impeachment mechanism, using the grand jury as a prop to gather up fodder for the "public" process of impeachment.

Mr. Starr has chosen to fulfill the latter role. He should now remove himself from the equation, since Article I of the Constitution vests the impeachment function exclusively in the legislative branch.

This presents an opportunity for Mr. Starr to assist in bringing to a close a matter that is damaging the United States at home and abroad.

As former New York Gov. Mario Cuomo recently observed, the legal hair-splitting and angry name-calling between Congress and the White House will persist so long as "indictment" is in the wind. As long as a special prosecutor stands in the wings, threatening to club the president over the head the moment he leaves office (no matter how weak the alleged criminal violation), the White House and Congress will remain locked in a standoff. No lawyer worth his salt would advise the president to "incriminate" himself, if criminal penalties (however remote) could flow from his candid dialogue with Congress.

Like any prosecutor, Mr. Starr has the power to exercise his sound discretion and cut a deal to resolve this case in a sensible fashion.

A prosecutorial deal

The independent counsel should agree to drop any threat of criminal prosecution against the president in the Lewinsky matter in return for a stipulation from the president's lawyers that Mr. Clinton testified "untruthfully" in the Paula Jones deposition on the subject of his affair with Ms. Lewinsky. The Lewinsky matter will then be moved squarely to the political arena, where it belongs.

The job of Congress would then become sharpened and uncomplicated. The House Judiciary Committee, first, would have to determine if the president committed perjury. (Not every "untruth" under oath is perjury; the misstatement must be "material" to the civil lawsuit.) Second, Congress would have to determine if the president's conduct rises to the level of a "high crime or misdemeanor," as required by the Constitution.

With threats of criminal prosecution removed, the president would be in the position to provide his side of the story in an open fashion and cooperate fully with Congress. Then Congress would be able to deliberate in a dignified fashion, and reach a determination whether impeachment or (alternately) censure is an appropriate punishment, based upon a rational review of the evidence.

The member of Congress who is able to broker such a deal for the good of the country should be considered for the presidency in the year 2000. By then, maybe this strange national nightmare shall have passed.

Kenneth Gormley is a professor at Duquesne University's School of Law in Pittsburgh and author of "Archibald Cox: Conscience of a Nation" (Addison-Wesley, 1997).

Pub Date: 10/13/98

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