September 11, 1998
The Starr report contains a lot of explicit details, but what does it mean in legal terms? Two former federal prosecutors debate whether there is evidence of impeachable crimes.
MARGARET WARNER: We get a legal assessment now from two former federal prosecutors. Henry Hudson was the U.S. attorney for Northern Virginia during the Reagan and Bush administrations. And Bruce Yannett was an assistant U.S. attorney for the District of Columbia and also served on independent counsel Lawrence Walsh's team in the Iran-Contra investigation. Mr. Hudson, how compelling a case has Ken Starr made here against the President in broadest terms?
A RealAudio version of this segment is available.
The Starr report and White House rebuttal.
September 10, 1998:
What is the constitutional basis for impeaching a president?
September 9, 1998:
Kenneth Starr drops off his case to the House.
September 3, 1998:
Four former senators discuss whether the president should step down.
August 26, 1998:
Editorial writers from across the country differ on their take on the resignation question.
August 19, 1998:
Senator John Ashcroft and Rep. Barney Frank debate whether President Clinton should resign.
August 18, 1998:
Voters in Denver react to Bill Clinton's speech.
August 18, 1998:
Shields & Gigot discusses the president's speech.
August 17, 1998:
Full coverage of the president's speech to the American public.
August 17, 1998:
An analysis of the media's coverage of the Starr investigation.
August 13, 1998:
What impact will the Starr investigation have on the institution of the presidency ?
July 30, 1998:
Should Clinton address the public about the Lewinsky matter?
July 28, 1998:
Ken Starr makes an immunity deal with Monica Lewinsky.
July 27, 1998:
Ken Starr subpoenas the president to testify in front of his grand jury
July 21, 1998:
A roundtable discussion on Chief Justice Rehnquist's decision not to interfere with the subpoenas of secret service agents.
July 15, 1998:
Can the Justice Dept. force secret service agents to testify?
July 1, 1998:
A report on the question of executive privilege and the Starr investigation.
Browse the NewsHour's coverage of the Starr Investigation.
A compelling case against the president?HENRY HUDSON: Well, assuming, Margaret, that he's able to prove each and everything he has alleged, it's a pretty compelling case. We have to look over the evidence to see really whether or not it supports the allegations he makes. Taking them one by one, I think it's fairly clear he has a perjury charge against the President. Would that be enough for an impeachment? That's yet to be determined. The other three require specific intent. The obstruction of justice and the perjury - what they set out here, Margaret, is a series of events - if all of them were done by the President with a specific intent to obstruct justice or to color someone's testimony, he may be guilty of that, but proving that intent could be difficult. Now, the last category, the abuse of power, you know, it doesn't require an actual crime to impeach the President. It could be other forms of conduct. Abuse of power is not a crime. So he's relying upon a pattern of activity done by the President which show that he abused his power, an arrogance of power. But, again, Margaret, he's going to have to show that each of those acts were done with a specific intent of obstructing this investigation.
MARGARET WARNER: Mr. Yannett, what's your assessment overall of how strong a case Ken Starr made here?
BRUCE YANNETT: Frankly, I'm struck by how weak the case. I was surprised. Obviously, I haven't had a chance to read it carefully, but I read the entire report quickly, and it shocked me in how thin it was, especially on the obstruction of justice allegations and the subornation of perjury allegations. You know, the whole case now really boils down to the perjury aspects of the allegations, and there the sole evidence really is Monica Lewinsky and her testimony about the explicit nature of their relationship. There were no eyewitnesses. The stories we had heard about Secret Service agents witnessing things apparently are not true. And what it comes down to is when the President testified, when he adopted a narrow legalistic interpretation of the definition of sexual relationship, was he knowingly and falsely testifying when he denied it?
MARGARET WARNER: And that's in the Paula Jones deposition.
BRUCE YANNETT: And that's in the Paula Jones deposition. And that seems to me to be a pretty thin read on which to build the case. As to the abuse of power, you know, frankly, it shocks me that it's even the report. There is no crime for abuse of power, and Ken Starr is a prosecutor. He is not a politician; he is not the House Judiciary Committee. And to say that by asserting constitutional privileges that, in fact, the judges in some significant measure upheld is an abuse of power is really a startling development.
Assessing the perjury charge.MARGARET WARNER: Mr. Hudson, address this perjury issue in more detail in your view. It does rest - the difference rests on this narrow interpretation of what David Kendall says was a very narrow interpretation in the Paula Jones deposition. Who do you think has the stronger case on that?
HENRY HUDSON: Well, I think the President has pretty well admitted, Margaret, that he has made false statements. He's attempted to atone for it and explain it. But I don't think any person in America is prepared to accept the fact that what he did with Monica Lewinsky didn't fall within the definition of sexual relations. There's a lot of criticism, Margaret, of the details that Starr put in the report, but actually it's because the President chose to parse words that Starr was forced to show his hand and show exactly what evidence he had, Starr thought, constituted sexual relations.
MARGARET WARNER: Go ahead, Mr. Yannett, on that point.
BRUCE YANNETT: The issue really isn't whether a normal American would think this was sexual relations. It - there was a very precise definition that was applied in that Paula Jones deposition, and the President apparently was interpreting it as narrowly as possible, and you can criticize him for doing that, but I doubt very much that this is a perjury case that Henry Hudson or I ever would have brought were this not the President of the United States.
MARGARET WARNER: Well, now Mr. Kendall makes that point as well, that this would not be indictable as an example of perjury and Mr. Hudson, is that the right test?
"The Congress could decide this strictly on political reasons."
HENRY HUDSON: That really is not. You have to understand, which makes this entire exercise difficult, Margaret, is that we don't know what a high crime and misdemeanor actually is. It is whatever Congress wants it to be on any given day. So it's hard to measure the evidence by the standard of what the collective members of Congress feel about it. The Congress could decide this strictly on political reasons. It could be their own visceral reaction to the evidence. It doesn't have to constitute a crime.
BRUCE YANNETT: But what we're talking about right now is Ken Starr's report, not Congress's reaction to the report. And Ken Starr is a prosecutor acting as the attorney general for purposes of this prosecution and only applying criminal law standards and making a referral to the House, and, it seems to me, that - I have yet to see a case where a witness in a civil deposition who in a sexual harassment denied a relationship with another person who was not a party to the case and that resulted in a prosecution for perjury.
HENRY HUDSON: But, Bruce the problem is -
MARGARET WARNER: Go ahead.
HENRY HUDSON: But, Bruce, the problem is this report is not being prepared for a case to be tried in court, so that's really an academic argument. This report is being prepared for a trial in Congress, Congress in which they don't have the same legal standards you do in a court of law.
The obstruction of justice charge.
MARGARET WARNER: All right. Bruce Yannett, turn now to the whole area of obstruction of justice, and as we just reported, it comes in two parts. On the one hand they're saying he obstructed justice in the Paula Jones case by concocting a story with Monica Lewinsky and making efforts to get her to testify in a certain way. Then he also says that the President's guilty of obstruction of justice in the Starr inquiry by lying to his own aides and letting them go to the grand jury and lie. Address both of those, if you can. Does Ken Starr have a strong case here on that?
BRUCE YANNETT: Well, it's interesting. If you read the full factual recitation by Mr. Starr in part two of the report, this notion that Ms. Lewinsky and the President would deny having any kind of relationship started long, long before there was a Paula Jones lawsuit or Ms. Lewinsky was ever going to be a witness in that case. So it's not as though they concocted some story for purposes of the depositions in the Paula Jones case. And the evidence there is not particularly strong, and as to the second phase, which is denying to his aides that there was a relationship and then bootstrapping that into an obstruction of justice claim I think is remarkable. That, to me, is entirely unprecedented. I've never seen any prosecution like that before. You have to assume that President Clinton, when he denied it to is his senior aides, knew that, in fact, the Starr office was three months or six months later going to subpoena every single aide in the White House to talk about their conversations with the President. And that seems to me is too far fetched to build an obstruction case on.
HENRY HUDSON: If I were trying it in court, I would agree with Bruce totally. I think that would be very difficult to prove, but, however --
MARGARET WARNER: I'm sorry, but just so I understand, you're talking about in the Starr end of it, that because he told -- he lied to his aides -
HENRY HUDSON: That's right.
MARGARET WARNER: -- is that what you're saying?
HENRY HUDSON: That's what I'm saying.
MARGARET WARNER: That would be hard?
"The standards aren't well defined."HENRY HUDSON: Using that theory of proof, I agree with Bruce totally. I couldn't see any jury convicting someone of that. But, remember, these members of Congress are judging the conduct of the President, and if they believe that the President instructed his staff, knowing that they would make false statements in front of a grand jury, they may consider that to be a sufficient abuse of power to impeach the President. We don't know. Again, the standards aren't well defined.
BRUCE YANNETT: Margaret, can I make one quick point?
MARGARET WARNER: Please.
BRUCE YANNETT: It's very important to keep in mind, though, that the whole purpose of a referral from an independent counsel to the Congress was to bring evidence of crimes to the attention of Congress that could warrant impeachment. It was not to replace Congress in its own constitutional function. The House Judiciary Committee has its own function to do an investigation. And the Starr office, in effect, is acting as the Congress or trying to act as the Congress and sweep into its report things that clearly are not prosecutable crimes.
HENRY HUDSON: With all due respect, let me correct Bruce. It's not just crimes; it's crimes or impeachable offenses.
MARGARET WARNER: All right. Let's go now to abuse of power, which I think you, Mr. Hudson, even said you thought was perhaps a little difficult to demonstrate.
HENRY HUDSON: I think it will be very, very difficult to prove. As I mentioned, it doesn't require proof of a criminal act to justify impeachment. What Starr is saying here is that he misused the mantle of office; he abused his power by invoking all sorts of privileges and immunities to obstruct the investigation. It's going to be very, very difficult to prove that those were done with a specific intent to obstruct, particularly if they were done with the advice and consent of counsel. That's going to be a real tough one to prove.
MARGARET WARNER: You mean, as we just heard Mr. Ruff say, that in his own opinion these privileges, whether it was executive privilege or attorney-client, needed to be defended?
HENRY HUDSON: Yes. I think that's right, and there probably is a basis for it. And while I disagree that they applied in this case, I think you should have had the right to argue them.
MARGARET WARNER: Mr. Yannett.
"I think this is an example, and I hate to say this, but of gross overreaching by the Starr office."
BRUCE YANNETT: You know, I think this is an example, and I hate to say this, but of gross overreaching by the Starr office. You know, there were a couple of privileges asserted. One was executive privilege. And Judge Johnson in the district court said it was a valid assertion of privilege, but that the grand jury's need for the information overcame that assertion. On the Secret Service privilege you had every living director of the Secret Service signing onto a brief saying this information should be protected. And on the attorney/client privilege you had the lawyers in the White House taking the position that they should be able to have privileged conversations with their client. And to say that the assertion of those privileges constitutes an abuse of power is frankly a frightening charge, and clearly, I think is gross overreaching.
MARGARET WARNER: Let me go back to one thing that is a thread in several of these charges, which also has to do with the assertion that the president lied in his videotaped deposition on August 17th before the Starr grand jury, and this has to do with the nature of the relationship with Ms. Lewinsky. If that is one person's word against another - and I know this is not a criminal trial - but what would be - how would in a judicial system how would you weigh that, Mr. Hudson?
HENRY HUDSON: Well, I'm not exactly sure how you would weigh that. There are some people, Margaret, who were arguing that this was a private relationship, if that's what you're getting to here.
MARGARET WARNER: Actually, what I'm getting to is David Kendall asserts in his long memo that if it's one person's word against another, again, in a legal context --
HENRY HUDSON: Margaret, there are lots of cases that are prosecuted - I've done scores of them myself - where it's one person's word against another. In almost every sexual assault case that I've tried, every rape case, it is the victim's word against the defendant's. It's a matter of building corroboration, a matter of building the credibility of your witness. That's the way you try that case and that's the way this case would have to be tried, if it were tried in a court of law.
MARGARET WARNER: All right, Mr. Yannett, now back to the big question and you have all addressed this in part, but do you think these alleged offenses, if demonstrated, rise to the level of high crimes and misdemeanors?
What would the framers of the Constitution think?
BRUCE YANNETT: Well, I think based on the evidence that I've seen in the Starr report, I think the answer to that is no. While it is true that President Ford when he was in Congress said an impeachable offense is whatever Congress says it is, in fact, I think if you go back to the framers, what they had in mind was abuses of the power of the office, misusing the authority of the office of the presidency, as President Nixon did back in the early 1970's. And I don't think that the evidence in this case really rises anywhere near that level. And while it is certainly troubling and while it's unpleasant to read, it doesn't rise to that level, but it is true that Congress could come up with a different interpretation, and their answer is the one that really matters.
HENRY HUDSON: But, Margaret, you have leaders in both the House and the Senate that are saying now that if there's clear evidence of perjury, they think that may be enough to impeach. If that is their mindset going into this - and there is evidence not only of that but of obstruction of justice, tampering with witnesses, and abuse of power - I would think if all these can be proven, it will be enough for impeachment if it be the will of the Congress.
MARGARET WARNER: All right. Well, thank you both very much.
BRUCE YANNETT: Thank you.