April 2, 1998
Following a federal judge's decision to dismiss Paula Jones' sexual harassment case against the president, attention has shifted back to the Starr investigation. Jim Lehrer and guests discuss the current state of the investigation.
A RealAudio version of this segment is available.
April 1, 1998:
A judge dismisses Paula Jones' case against the president.
March 3, 1998:
President Clinton's friend and confidant, Vernon Jordan, testified before the grand jury.
February 27, 1998:
Shields and Gigot discuss criticism of Starr's investigation .
February 26, 1998
First Amendment implications of the Starr investigation.
February 24, 1998:
Clinton aide Sidney Blumenthal is called before the grand jury.
February 18, 1998:
Washington Post reporter Dan Balz discusses presidential adviser Bruce Lindsey's testimony before the grand jury.
February 6, 1998:
Perspectives on the Starr investigation from beyond the beltway.
January 26, 1998:
Experts debate the role of the independent counsel.
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.
Browse the NewsHour's coverage of the U.S. Presidency and law
The Washingtonpost.com's coverage of the crisis.
JIM LEHRER: Now some opinions about the Starr investigation from three former prosecutors and a constitutional lawyer. Lawrence Walsh headed the Iran-Contra investigation. Alexia Morrison investigated a Reagan Justice Department official for allegedly lying to Congress. Richard Ben-Veniste was a member of the Senate Watergate investigation staff and was minority counsel in the more recent Senate Whitewater investigation; and Jonathan Turley is a professor at George Washington University. Mr. Walsh, what do you believe Ken Starr should do now with his investigation?
A transcript of the interview with Dan Balz of the Washington Post.
"I think he should seriously consider winding up based on what we know publicly."
LAWRENCE WALSH: Iran-Contra Independent Counsel: I think he should seriously consider winding up based on what we know publicly. Now, he may have a lot of things before the grand jury that we don't fully understand, but if this investigation was started to investigate perjury or subornation of perjury in the Paula Jones case, the real question is - assuming that there were false statements made, assume that the president and Ms. Lewinsky perhaps had a relationship which they chose not to disclose, that in no way hurt Ms. Jones, because her case was thrown out for an altogether different reason, that she couldn't prove damage. So the question is: In a federal--under a federal perjury or subornation of perjury investigation and prosecution, there has to be materiality. What is the materiality? It didn't make any difference which way they answered those questions. And so I think if that was the excuse for this intrusion into the president's personal activities, I think the time may have come to call it off.
JIM LEHRER: Ms. Morrison, call it off?
ALEXIA MORRISON, Reagan-Era Independent Counsel: You know, Jim, I don't think that Mr. Starr has anything different in his investigation today than he did day before yesterday as a result of the decision in the Paula Jones case. He's looking at criminal charges that arose in connection with that case, but the way that case was resolved didn't change any of the things that Mr. Starr's looking at in terms of whether or not there was perjury on questions that were material at the time the answers were given is judged as of the time that those answers were given, and--
JIM LEHRER: But serious enough to pursue in light of the dismissal?
ALEXIA MORRISON: As I say, it's as serious as it was the day before yesterday, in my opinion.
JIM LEHRER: Mr. Ben-Veniste.
RICHARD BEN-VENISTE, Watergate Prosecutor: I have to disagree with that. I think there are practical and legal ramifications to the decision of Judge Weber Wright. In the first instance, I think, that Mr. Walsh is correct, that the materiality of the affidavit which was filed by Ms. Lewinsky and the president's deposition relating to that matter are in serious question. They were in question before when the judge ruled that the Lewinsky matter would not be a part of the Jones case anyway, and they're further in question in connection with her decision that stated explicitly that it did not matter for purposes of evaluating her claim whether there were any other such liaisons alleged.
JIM LEHRER: But you and Mr. Walsh are both saying that it doesn't matter if, in fact, the president lied under oath, if, in fact, Monica Lewinsky lied under oath, they should not be prosecuted.
"...now is the time for the exercise of sound prosecutorial judgment."
RICHARD BEN-VENISTE: Well, what we are saying, I think, is that an element of the offense of perjury requires proof of materiality, along with there being the big issue is whether there was a false statement under oath and whether it's knowingly done, but there are practical ramifications to this, as well as legal. And I think the practical ramifications go again to the question of proportionality. Do we have this investigation that starts out as a proposed sting operation against the president of the United States for this now obviously irrelevant part of a civil case in which a deposition was filed? That, I think, is front and center, and now is the time for the exercise of sound prosecutorial judgment.
JIM LEHRER: Ms. Morrison.
ALEXIA MORRISON: Let's take a different spin on this if we can. If you say that perjury and subornation of perjury allegations are judged in 20/20 hindsight, what you're really setting up for us is a system of justice where we say to people, you know, you can perjure yourself in a deposition or in testimony relating to an ongoing case, and, if you're lucky enough to get it dismissed, it'll turn out not to be perjury because hindsight will--
JIM LEHRER: It doesn't matter.
ALEXIA MORRISON: --judge it. That was the point I was trying to make earlier, that the really relevant time frame is when the acts occurred, were they criminal at that time, was there a violation of the oath taken by either Ms. Lewinsky in her affidavit, or the president in his deposition? Was there subornation of perjury in that then active civil case, or an attempt to obstruct justice?
JIM LEHRER: So it doesn't really matter what the issue was they were lying about, the fact was if they, in fact, lied, that's the crime?
ALEXIA MORRISON: Well, it has to have been material at the time.
JIM LEHRER: At the time.
ALEXIA MORRISON: I mean, if you make a mis-statement about something that is really a side issue and not material at the time, that's clearly not perjury.
JIM LEHRER: Mr. Turley, where do you come down on this?
JONATHAN TURLEY, George Washington University Law School: Well, I suppose I would put two cautionary notes. First of all, the materiality requirement goes to when you are charged with committing perjury, it has less effect upon obstruction of justice charges or where you're trying to get someone else to commit perjury. There the materiality issue becomes less of a problem. Also, you have to keep in mind that Ken Starr is an independent counsel. He's not a normal prosecutor. He doesn't even have to think of an indictment. He can be doing all of these investigations, all of these witnesses can be put into a report for Congress. So whether he indicts someone or not, or whether he indicts them all makes no difference to him. His job is to create a central record or a report of any possible criminal conduct by the President of the United States, so when people talk about can he prove this indictment, they're I think getting a little ahead of themselves.
JIM LEHRER: But he said, himself, that he was interested in criminal matters only, and I would assume then--he's talking about the president--I mean, Monica Lewinsky wouldn't be involved in an impeachment thing; that would be an individual criminal matter, would it not? I think he should seriously consider winding up based on what we know publicly.
"There's a damning amount of evidence ... and a good prosecutor could turn it into a damning case of conspiracy."
JONATHAN TURLEY: It's true, but the most important thing for Mr. Starr to do is to issue a report to Congress on any possible criminal conduct or involvement of the president. There clearly is allegations going to that. He can also pursue indictments against individuals at the same time of issuing a report to Congress. But none of the Jones case would have any effect upon his pursuing any of these other characters. To believe that is a dangerous delusion for the White House. It's also dangerous for the White House to believe what they've been saying, that he has an empty bag of evidence. That ignores reality. There's a damning amount of evidence in that grand jury room and a good prosecutor could turn it into a damning case of conspiracy.
JIM LEHRER: Mr. Walsh, what about--what do you make of Mr. Starr's point that he made to the press today that this is a law job, not a political job that he is doing? Do you agree with that at this stage?
LAWRENCE WALSH: I agree with his job definition. I'm not sure that those are the only factors that are being taken into account. That's what--he's saying what it should be, but it seems to a person looking at it from a thousand miles away that there--that there is an excessiveness here that is hard to understand simply as a law job.
JIM LEHRER: Like what?
LAWRENCE WALSH: An ordinary professional prosecutor does not intrude in the middle of a civil case to try to side--to decide which witnesses are telling the truth and which aren't. That goes to the judge and the jury in the civil case, and they sort it out. It's only if the judge or the disappointed party concludes after the judge and the jury have had their chance to review all the evidence that somebody has lied and perjured himself, that it should go to a prosecutor. A government prosecutor shouldn't be in the middle of a civil case along with the lawyers for the plaintiffs and the defendants fighting over truth. I think he has an excessive view of his job.
JIM LEHRER: Professor Turley.
JONATHAN TURLEY: In deference to Judge Walsh, I understand his point, but to be faithful to the record, Ken Starr didn't intervene in a civil case. He was given a mandate to investigate possible crimes by the president.
LAWRENCE WALSH: He asked for the mandate.
JONATHAN TURLEY: He sought it. They actually postponed the Jones case. Now, listen, I've criticized Ken Starr as much as anyone, but the one thing you can't criticize him for his the mandate he was given by the attorney general of the United States. And we have to stop some of the sort of extrinsic issues here. The president stands accused of serious offenses. Whether the public believes it or not is less important than the fact that an independent counsel is in the field. He has a mandate. He's going to finish that investigation. And when he does, he'll issue a report and possible indictments. But I also have to say it is a mistake to vilify an independent counsel because the only avenue for vindication tends to be convictions. So I'm not so sure why everyone's eager to beard the lion here. What would be best, I think, is to leave this independent counsel to conduct the investigation to a conclusion.
RICHARD BEN-VENISTE: All right. I have to say it's outrageous to suggest that the president has been charged with serious violations. There are no charges of serious violations.
JONATHAN TURLEY: No. There are serious allegations.
RICHARD BEN-VENISTE: And there are no charges that are lodged against him, and part of the problem that we've all had with the politics of scandal here is the tremendous hype which, unfortunately, the independent counsel's office has in some manner apparently encouraged through weeks or what have you, which is now under inquiry before Chief Judge Johnson. These are things including the procedures.
JIM LEHRER: Now, that's the federal judge who's overseeing the grand jury here in Washington.
RICHARD BEN-VENISTE: That's correct. That's another issue that's out there, and I have to say that, you know, when you can get to the point in the public perception where there's a notion that serious charges have been laid against the president in view of the fact that nothing yet has come forward, we're in trouble. And I think the question here before us now is whether the determination of the Paula Jones case, given every benefit of the doubt, which the judge had to apply in Ms. Jones's favor, stated a case which any reasonable jury could find in her favor, now shows that there's been a rejection of the notion that you can use the judicial process for such things. The Paula Jones allegations have been largely hijacked now by the independent counsel, who is conducting his own investigation, we are told, into the truthfulness of what each witness in a civil case involving sexual relations had sometime ago. Now, that's a stretch.
JIM LEHRER: All right. Now, let me ask, is it a stretch, Ms. Morrison, and also to speak to Judge Walsh's point, that it was a political act almost on Kenneth Starr's part when he decided to investigate this civil matter, in other words, whether or not there had been perjury in a civil case.
ALEXIA MORRISON: There are a lot of points here, and I hope I can tie them together properly.
JIM LEHRER: I'm trying to make a note of them; there are several.
"... prosecutors don't and shouldn't keep their fingers in the political winds and become influenced by what the media says...."
ALEXIA MORRISON: Number 1, the political act is one that the attorney general of the United States handed Ken Starr. She had a decision to make when the Lewinsky allegations came to her attention as to whether or not (a) to seek an independent counsel and (b) whether or not to say if she chose to seek an independent counsel that Ken Starr was the right guy to do the investigation. She resolved both of those questions in the affirmative, and she's the one under the independent counsel statute who's the gatekeeper. She constitutionally has to be the turning point on which any allegations go forward to an independent counsel. So we're looking at someone, Mr. Starr, who got these allegations through a perfectly constitutional statutory process, that he is not able to initiative himself. That having been said, I'd like to go back to the question that you asked about is this political, or, you know, Mr. Starr's point about a political job versus a legal job. As we sit here today, we don't know--and I think Professor Turley mentioned this--we don't know what the evidence before the grand jury is. We probably all would love to know, but we don't know and we can't know. And it's important to keep in mind that prosecutors don't and shouldn't keep their fingers in the political winds and become influenced by what the media says, what the public polls say, or what other people have an impression should be the right result. To the extent that the president gets a political lift or an improvement in his poll ratings as a result of the dismissal of the Jones case, that should not be a factor for Kenneth Starr at all. If he had a good case the day before the dismissal, he's still got the same good case, and he has the same obligation to pursue that case today as he had before.
JIM LEHRER: Mr. Walsh, do you agree with that, there is no outside public pressure on Kenneth Starr to move this thing along, or to decide one way or another, as it relates to what happened yesterday in the dismissal?
LAWRENCE WALSH: There's always a certain amount of public pressure on an independent counsel, and he has to try to ignore it, and I don't suggest that he should yield to that in any way. On the other hand, he is the person whose judgment is being called for here. He cannot hide behind the attorney general and say she asked me to do it. He is an independent lawyer. He is an independent counsel, a very powerful position, and an enormously responsible one. And it was his decision to get into the--into a private case before it was even over. And I think he--I've never heard an explanation for that. And as I listened to him in his interview earlier on this program, he doesn't answer the question, he doesn't discuss the question of disappearing materiality. He talked in very simple terms as though he were talking to, you know, a student group, explaining simply what the generalized responsibilities are, but not addressing the immediate problem that has been thrust on him.
JIM LEHRER: All right. Well, we have to leave it there. Ms. Morrison, gentlemen, thank you very much.