Kenneth Starr for the Defense

Kenneth Starr for the Defense

Kenneth Starr for the Defense

How you look at things.
Feb. 4 1999 3:30 AM

Kenneth Starr for the Defense

The independent counsel rescues the president once more.

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There he goes again. According to "associates" interviewed last week by the New York Times, Independent Counsel Kenneth Starr has been "actively considering" an indictment of President Clinton while Clinton is still in office. The story, published Sunday, surfaces at a typically inopportune moment. The Senate is preparing to vote by Feb. 12 on whether to remove Clinton from office. Assuming that vote fails, senators will evidently consider whether to censure Clinton or to approve "findings of fact" that he lied under oath and interfered with the judicial system. Starr's reappearance is just what Clinton needed to escape punishment entirely.

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The leak is clearly an inside job. According to the Times, Starr's "associates," with whom he "speaks frequently" and "has discussed" the issue directly, have been researching the issue and discussing it with Starr during the Senate trial. Starr and his spokesman deny leaking the story. The most charitable theory is that it came from the "group of prosecutors" inside Starr's office who, according to the Times, believe Starr should seek the indictments. But by signaling that Starr might prosecute Clinton in the courts, the disclosure from Starr's office protects Clinton in the Senate.

1.It supplies an alternative villain. Ever since James Carville declared "war" a year ago, the White House strategy has been to divert scrutiny to Starr, Newt Gingrich, and other enemies of Clinton. In the past six months, the media and key congressional Democrats have turned on Clinton twice, first when Starr disappeared from the scene in September, and again when Gingrich disappeared in November. By leaving Clinton alone onstage, his enemies forced Congress and the press to confront his shameful conduct.

Now, just as the Senate approaches its verdict on Clinton's misdeeds, Starr's "associates" have shoved Starr back onstage, and Democrats are turning the spotlight on him. Clinton's lawyer David Kendall is calling for an investigation, claiming that Starr "has once again engaged in illegal and partisan leaking." Hours after the Times story was released, Sen. Charles Schumer, D-N.Y., declared on Meet the Press, "Ken Starr is once again running amok." On This Week, Sen. Richard Durbin, D-Ill., likened Starr to the obsessed, wrongheaded investigator in The Fugitive. Republican senators groaned at Starr's gaffe, citing it as further evidence that the independent counsel law should be scrapped. The discussion of Starr's indiscretion supplanted the discussion of Clinton's.

2.It antagonizes the Senate. Democratic senators were already angry at Starr for going to court to force Monica Lewinsky to submit to yet another deposition, which she did for House prosecutors Monday. These senators complained that Starr was interfering with the Senate's management of the trial. White House aides lost no time turning the Times report into another cause for Senate outrage. "Starr is tampering with the Senate trial," White House spokesman Jim Kennedy told the Los Angeles Times Saturday night. "Somebody ought to tell [Starr] he's not the 101st senator." Democratic senators agreed. Sunday morning on Face the Nation, Sen. Carl Levin, D-Mich, grumbled that Starr "or people in his office are trying to impact this trial. They've tried to impact it before in a number of ways, wrongfully, irresponsibly." The suspicion that Starr is scheming to make the Senate punish Clinton provides a convenient rationalization for doing the opposite.

William Saletan William Saletan

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.

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3. It relieves pressure to punish Clinton in the Senate. Clinton's defenders have argued for months that the Senate need not punish him because he can be punished instead by an ordinary prosecutor and jury after he leaves office. Starr's gaffe confirms this argument, freeing senators to vote not only against Clinton's removal but against censure as well. On Sunday's television shows, several moderate Republican and Democratic senators cited the Times story as evidence that, as Sen. Joseph Lieberman, D-Conn., put it, Clinton "can be subject to the rule of law, regardless of what the Senate does. ... A prosecutor is still free to subject him to the normal criminal law, and it sounds like Mr. Starr is getting closer to doing just that." On Face the Nation, House prosecutor Rep. Asa Hutchinson, R-Ark., observed with disgust that the disclosure from Starr's office played into the hands of senators who say "there's no sense impeaching [Clinton] because he can be held accountable when he leaves office."

4.It gives Democrats a reason to oppose findings of fact. Republicans have been floating a proposal under which the Senate, rather than voting to remove Clinton from office, would approve a resolution affirming that Clinton lied under oath and tampered improperly with the judicial system. Some Democrats have indicated they might support such a resolution, depending on its language. But the specter of a criminal indictment by Starr stirs up suspicion among Democrats that these findings of fact might help Starr prosecute Clinton on charges of perjury and obstruction of justice. This suspicion may be a delusion or a self-delusion, but it nevertheless provides an excuse to vote against the resolution.

5. It pits Starr against Lewinsky. House prosecutors spent weeks portraying Clinton as Lewinsky's treacherous abuser. They scheduled her deposition for Monday, hoping she would contradict Clinton's testimony and convince senators that he had committed perjury and obstructed justice. Instead, the Sunday Times story resurrected the notion that Starr, not Clinton, posed the chief threat to Lewinsky. Starr had already forced her to testify for the House prosecutors by invoking her immunity agreement, thereby implicitly threatening her with prosecution. Now he seemed to be threatening Clinton with prosecution as well. Where would he stop?

The resulting deposition seems legally and politically counterproductive. According to leaks that appear to have come from Clinton's sympathizers, 1) House prosecutor Rep. Ed Bryant, R-Tenn., tried to interrogate Lewinsky about "details of her sexual encounters" with Clinton but was ruled out of order; 2) another prosecutor, Rep. James Rogan, R-Calif., told Lewinsky she could be compelled to testify again; and 3) Clinton's lawyers asked her no questions and instead apologized on Clinton's behalf. Reports indicate that Lewinsky thanked Clinton's lawyers for the apology and that she responded carefully and unhelpfully to Bryant's questions, lest she contradict her previous testimony and get herself into more trouble with Starr.

For more than a year, Clinton's surrogates have been calling Starr an "out-of-control" prosecutor. To their good fortune, he's proving them right.