THE INDEPENDENT COUNSEL
January 26, 1998
A three-judge panel approved expanding independent counsel Kenneth Starr's investigation to include the possible suborning of perjury and other issues surrounding an alleged affair between President Clinton and a White House intern. But the expansion of Mr. Starr's inquiry has raised questions about the independent counsel statute. Phil Ponce leads a debate over whether the law moves investigations from the political arena or simply turns prosecutors into predators.
PHIL PONCE: Differing views on the independent counsel law and how it's being implemented now. Joseph DiGenova was the U.S. attorney during the Reagan administration and was appointed independent counsel to investigate former Bush officials in the Clinton passport matter. Kenneth Gormley is professor of law at Duquesne University; Anthony Lewis is a columnist with the New York Times. Byron York is a reporter with the American Spectator and contributor to the Wall Street Journal and the Weekly Standard. And joining them is NewsHour regular Stuart Taylor, senior writer with National Journal and contributing editor to Newsweek. Welcome everyone. Stuart Taylor, some basics under the law, what is an independent counsel supposed to do?
A RealAudio version of this segment is available.
January 26, 1998:
Our presidential historians discuss the importance of President Clinton's State of the Union address.
January 26, 1998:
Washington Post reporter Dan Balz updates the latest on the investigation.
January 22, 1998:
Presidential historians and experts put the brewing crisis in perspective.
January 21, 1998:
President Clinton responds to charges that he may have had an affair with a former White House intern.
January 16, 1998:
Mark Shields and Paul Gigot discuss the impact of the Paula Jones case.
May 27, 1997:
A discussion on the ramifications of the Paula Jones case on the office of the Presidency.
January 13, 1997:
Paula Jones's case goes before the Supreme Court.
Browse the NewsHour's coverage of the White House and legal issues.
The role of the independent counsel.
STUART TAYLOR, National Journal: To investigate any allegations of criminal conduct, only criminal conduct on the part of the President or people close to him. The law defines a set of people, cabinet secretaries, top White House aides, and the like, who are subject to investigations by independent counsel, but an independent counsel can only be appointed at the initiative of the attorney general if she believes there's evidence that warrants the appointment of one. Then she asks a special three-judge federal court to do the appointing, and they choose the person to be appointed.
PHIL PONCE: And what are the special powers that an independent counsel has under the law?
STUART TAYLOR: The same powers that the Justice Department would have in any criminal investigation. And prosecutors have enormous power in this country--to compel testimony from people, to haul them in front of grand juries, to charge people with crimes, to grant immunity, to enter plea bargains, to make deals in order to get the targets, subject to certain restrictions on their jurisdiction to the general subject matter that the attorney general referred to when she asked for the appointment in the first place. They don't have a roving commission to investigate everything under the sun.
PHIL PONCE: So, there is, though, some flexibility under the law as far as what this roving subject matter could expand into, and what is that?
STUART TAYLOR: Well, Kenneth Starr was appointed, for example, the subject focus was the Whitewater real estate deal and everything related to it. And lots and lots of things turned out to be related to it. Then Kenneth Starr, the independent counsel, was asked to investigate the so-called Travelgate episode, which really wasn't related to it, and went to the attorney general and asked for more jurisdiction to do that, and she concurred. Same thing with the so-called Filegate issue, the FBI files, and now most recently, after allegations were brought by Linda Tripp, who made these tape recordings, to Kenneth Starr's office, concerning Monica Lewinsky and the alleged danger of efforts to suborn perjury by her, Kenneth Starr first did some investigating, wired her up to record a conversation with Monica Lewinsky, another one, and then went to Attorney General Reno and asked for jurisdiction to enlarge--said, I think I should investigate this too--and although she didn't agree with him, that he already had jurisdiction to do it, she did agree that she should go to the independent--special court and ask that his jurisdiction be enlarged. That was done.
A "good statute" or "a monstrosity"?
PHIL PONCE: Mr. Gormley, before we get to the question following up on what Stuart just said, of how Mr. Starr's performing in this role, just looking at the law on its face, Mr. Gormley, how is the--is it a good law? Is it a law that's needed?
KENNETH GORMLEY, Duquesne University Law School: Oh, I think the special prosecutor law, as originally fashioned by Congress during and after the Watergate scandal, is a good law and a necessary law. And certainly we need an independent official to investigate matters when there is too close a connection to the attorney general that there may be some partiality. So, yes, it's a good statute, in theory.
PHIL PONCE: Mr. DiGenova, a good statute in theory?
JOSEPH DI GENOVA, Former Independent Counsel: It's a bad statute. It's a bad constitutional law. Even though the Supreme Court has ruled in the Morrison case that it is constitutional, just because something is constitutional doesn't mean that it's wise. And I'm not being critical of Ken Starr here. I think structurally this law is an anomaly. It's a monstrosity in our constitutional scheme. This is the way Congress wanted it to be, though. They wanted it to apply to all these people. I don't think Congress knew what they were doing when they enacted it--this law. I don't think they understand the ramifications of it. I must say that from a political standpoint I know the Democrats used to love this law when there were Republican presidents being bothered by it, like Reagan and Bush. Now that a Democratic President has literally been hoisted by it, many, many Democrats are finally beginning to realize that this is not a very good piece of legislation.
PHIL PONCE: Mr. Gormley, a quick response to Mr. DiGenova's position that it's a monstrosity.
KENNETH GORMLEY: Well, it's a monstrosity in the way it has evolved. I disagree that this is what Congress intended when they drafted that law. In fact, Archibald Cox was one of the people, or the prime people who testified in its favor, and part of it was to make sure that we reeled in the--and had set ground rules for future special prosecutors. In this case we've expanded from something that--a Whitewater/Arkansas land deal that occurred before the President was even in office--that's questionable enough in my mind. We jumped to these other tangential things, and now we have a tack-on that involves alleged having an affair, an extramarital affair. How there's any logical connection I simply don't understand.
Connecting Whitewater and Monica Lewinsky.
PHIL PONCE: Byron York, how about that? What is the logical connection between looking at a land deal that happened years ago to the charges the President is facing now?
BYRON YORK, American Spectator: Well, it takes a couple of steps to get there. One of the things Starr has been investigating is whether Webster Hubbell, a former high-ranking official in the Justice Department, was paid off to not cooperate with Kenneth Starr in testimony about the Whitewater deal. One of the people who arranged for Hubbell to receive large amounts of money, hundreds of thousands of dollars, was Vernon Jordan. And one of the things that connects these two cases is that Jordan is allegedly involved in helping to arrange a lawyer and an affidavit from Monica Lewinsky, and so the allegation goes, tried to arrange for her to change her story and deny ever having any sort of sex with the President.
PHIL PONCE: So you're saying in this case there's a question of a pattern of misbehavior on the part of "a" person?
BYRON YORK: That is one reason Starr is going after it, and the other reason Starr is going after it is that this woman, Linda Tripp, simply came to him. Linda Tripp has some history with Kenneth Starr. She had worked as a secretary in the office of White House counsel. She knew and admired Vincent Foster and was the last person at the White House to see him alive. As such, she testified before the grand jury about this. She has talked to Starr's people quite a bit about the Foster case. So she knew Starr; she trusted Starr; she went to Starr. At that point he had credible allegations in front of him, and what was he to do?
PHIL PONCE: Mr. Lewis, in this case, is the independent counsel playing by the rules?
ANTHONY LEWIS, New York Times: He's playing by the rules that have become so distorted that, in fact, no matter how you justify these lengths, it's like the house that Jack built. Kenneth Starr can really investigate anything he wants to because he's now in a position where if he goes to Janet Reno and the court, they really can't say no to him, or the country will cry, "It's a cover up," and preventing him from investigating. There was no choice for Attorney General Reno there, and listening to Mr. DiGenova, I have to say that I agree, I think he's right, the people have come to understand the potential for damage in this statute, though it was not intended as such, and the main thing is that we've criminalized our political process. The Constitution envisaged this country having three separate branches of government that would check each other and prevent abuse of power. Now we have a fourth, unelected, unaccountable lawyer, happens to be of the other party from the President, who's sitting there investigating anything that comes along. And the people are concerned now with a criminalized situation, instead of policy. When did you hear about policy? All you hear about his sex and crime.
PHIL PONCE: Mr. DiGenova, you were having a reaction as Mr. Lewis was responding.
JOSEPH DI GENOVA: Well, I find myself in complete agreement with Mr. Lewis, and I'm must say that I think what is tragic about this statute is not the implementation of it by Mr. Starr. We look at a piece of legislation by its words and what it says. Congress may not have known the full extent of what it was doing when it enacted this statute, which is quite often the case with Congress, when it enacts laws. But when the Morrison case went to the Supreme Court, Mr. Justice Scalia in his famous dissent outlined precisely what was going to happen with this statute, and he predicted that the criticisms we're seeing today and what is happening in this specific case would be happening when an unconstitutional officer is given the sole authority to investigation a single person with unlimited resources and no time restraints. This statute was a mistake; it was a constitutional monstrosity; it ought to be allowed to die in 1999, when it becomes de-authorized. And I predict that it will and it will not be re-authorized.
The wiring of Linda Tripp.
PHIL PONCE: Mr. Gormley, what is your reaction to Kenneth Starr's wiring of Linda Tripp to tape Monica Lewinsky?
KENNETH GORMLEY: That's where I have my initial big problem because, you see, he wired Linda Tripp and had her go get the evidence and then he went to Janet Reno and the three district court panel and asked for permission to expand his jurisdiction. It's as if in a criminal case, if a police officer went, obtained evidence, and then said, I'd like to get a warrant for this evidence, that's my problem. I think the special prosecutor--and here I disagree I think a little with Mr. DiGenova--because the special prosecutor law envisions a great measure of self-restraint by this special creation, and there are many times when the special prosecutor has to not investigate things that he or she perhaps could by pushing the law further and further but Mr. Starr has pushed it so far if this is the precedent that we live with, both Democrats and Republicans will regret it forever I believe.
PHIL PONCE: Stuart Taylor, what does the law say about restraints on an independent counsel? What's the nature of the supervision that somebody has over an independent counsel?
STUART TAYLOR: The law specifically provides that the President may remove--fire an independent counsel for "good cause," subject to judicial review. His jurisdiction is limited by the need for him to go to the attorney general and/or the special court to get an extension. That's what he did here, and Janet Reno is an attorney general who knows how to say no. She said no a lot to a lot of people, including the U.S. Congress, which has been clamoring for an independent counsel on campaign finance. This time she said, yes. I'm told that one reason she said yes was that a feeling that time was of the essence, that if she exercised the option to say to Starr, no, I'm going to seek appointment of a different independent counsel, not you, we've had enough of you, that it would have taken a long time to gear up the investigation. Meanwhile, the press was moving in on this, and any hope to gather evidence without the principals knowing what was afoot was fleeting.
PHIL PONCE: Byron York, what is your impression of the independent counsel's ability to follow his or her nose wherever the evidence might take them, including wiring a witness?
BYRON YORK: Well, on this specific case, you know, in the campaign finance case, we've heard the attorney general talk a lot about there's not enough specific and credible evidence for me to call for the appointment of an independent counsel. It seems to me that what Starr did when presented with Linda Tripp's evidence, the tapes that she had made, he simply used his completely justifiable prosecutorial power to gather more evidence, specific and credible evidence, and present it to Janet Reno. The fact that the attorney general approved this so quickly is really an expos facto endorsement, a decision that what was done was, indeed, within the rules.
PHIL PONCE: Anthony Lewis, are you assuaged by the controls on an independent prosecutor?
ANTHONY LEWIS: No. There's a complete lack of reality here. Does anybody really think that, to take Stuart's first point, that the President could fire, is that a realistic control on Ken Starr? Please, that's not--nor is it realistic to think that Janet Reno could have said no in these circumstances, the politics of these things. What you have to understand here is that here's a special prosecutor. Ken Gormley is right. It's wonderful if you had someone with restraint like Archibald Cox. But our constitutional system doesn't usually depend on the accident of having somebody with restraint. We don't give unlimited power to people because the framers of the Constitution didn't trust unlimited power. And that's what we have effectively given to a special prosecutor, an independent counsel like Ken Starr. Here he is working with Paula Jones's lawyers, going--accepting every kind of rumor and gossip that comes, not necessary proceeding on it, but it's come--a--what shall I say--a magnet for people with axes to grind against the President of the United States. Do we really want to have the country riveted about the President's sex life? Do we really want to turn over the country to a criminal process? I think it's crazy.
PHIL PONCE: Joseph DiGenova.
JOSEPH DI GENOVA: I think the real issue here is when Congress enacts a law like this, which is, in my opinion, extra-constitutional and creates, in essence, a fourth branch of government, which--
PHIL PONCE: By extra-constitutional, you mean beyond the Constitution.
JOSEPH DI GENOVA: Which has played no role in our history as a country, this is what you get. And I must say that I never heard Archibald Cox complain about this statute when it was being used against Ronald Reagan and George Bush. It was only recently that he has found so-called structural infirmities. Where was he when this law was being enacted in 1978? The problem here is that this is act is a political reflection of who is in charge of Congress in any given time and who is in the White House at any given time. It has nothing to do with the facts. It has nothing to do with our history of constitutional law enforcement, and that is why it is a very bad idea, and should be allowed to die when it expires in 1999.
Does an independent counsel have to catch someone?
PHIL PONCE: Mr. Gormley, is there an expectation that has arisen throughout the various independent--the tenure of the various independent counsels that unless they "catch someone" that they have been failures?
KENNETH GORMLEY: I think that there may be a lot to that, and I think that, unfortunately, that may be the sense that Kenneth Starr had, and if I could just respond to the last point, I think the big difference here is we're now--and I think Anthony Lewis made this point--we're now allowing the independent counsel to get into very personal matters. Do we know anything about the marital relationship between the President and his wife, and what arrangements they have? And we're now investigating--we're now morality police--and if we go down that path, I think it's a very serious mistake for our country, and we are not apt to have people go into public service very often if that's what the independent counsel can begin to investigate.
PHIL PONCE: And, gentlemen, I'm afraid we're out of time. I thank you all very much.
KENNETH GORMLEY: Thank you very much.