October 2, 1998
JIM LEHRER: Congress will release another batch of documents from the Kenneth Starr investigation tomorrow. They come as a prelude to a decision on whether to launch an impeachment inquiry against President Clinton. The Starr investigation that led to the documents and to the proceedings has been the subject of much debate. Margaret Warner now samples that disagreement with two columnists who have written extensively about it.
MARGARET WARNER: And those columnists are Anthony Lewis of the New York Times and Stuart Taylor of National Journal and Newsweek. Tony Lewis, you've been scathing in your criticism of Ken Starr's investigation and his tactics, and last week you said it was essentially illegitimate, an illegitimate process. Explain what you mean by illegitimate.
ANTHONY LEWIS: That would be a long explanation, Ms. Warner, because I think in a great number of ways Kenneth Starr and his people have behaved like overzealous prosecutors in ways that no other federal prosecutor would be allowed to do. Take, for example, when Mr. Starr's men confronted Monica Lewinsky in the Ritz Carlton Hotel on January 16th. She was told we're going to bring 27 felony counts against you unless you cooperate with us. Now that was absurd and outrageous. Then they said she couldn't call her lawyer. They kept her for there for 10 hours and not letting her call her lawyer, and they denigrated her lawyer, Frank Carter, and said, well, he's not a criminal lawyer anyway, and so he couldn't help you. And when she wanted to call her mother, instead, you know, Mr. Bennett, Mr. Starr's deputy, said, oh, you don't want to call your mommy. It was an overbearing and entirely unfair procedure. Any of us can understand that it's wrong not to let somebody call a lawyer. That's basic.
MARGARET WARNER: Was it so unfair that it de-legitimizes, though, the entire process, the entire investigation, the fruits or results of the investigation?
ANTHONY LEWIS: Well, I've only begun. I didn't take up too much time, but -
MARGARET WARNER: Give us another example.
ANTHONY LEWIS: Well, another example was, for example, Ms. Lewinsky said that they wanted her to wear a wire when she talked to Betty Currie, the president's secretary, and to Vernon Jordan, and perhaps to the president. The Starr office formally denied that in what I take it now was an inaccurate statement, to put it politely. Then, of course, Mr. Starr and his people were leaking like sieves through the whole thing, telling reporters, friendly reporters who acted, in effect, as stenographers for Mr. Starr, tidbits, giving them tidbits, highlights that would turn the country against the president. Indeed, when Mr. Starr was interviewed by Steve Brill, he admitted that Jackie Bennett had, as he put it, briefed the press.
MARGARET WARNER: One of his deputies, Jackie Bennett?
ANTHONY LEWIS: Yes. The principal deputy. Now, I suppose we could have a nice close linguistic discussion here of whether briefing and leaking are different. It would be like whether different kinds of sex are sex or not. But to my way of thinking, the story was gotten out in an illegitimate way, because the grand jury, one of the fundamental protections of people is not to have grand jury stuff leaked out. That's really bad.
MARGARET WARNER: Stuart Taylor, what's your view of this sort of broad-sided attack on Ken Starr and his tactics?
STUART TAYLOR: Well, I was jotting down notes, because Tony Lewis covered a lot of ground. Let me try and respond generally and then more particularly. First, I think it's important to note, as the New York Times editorial page has repeatedly noted, that what's most important here is not what we think of Kenneth Starr but how we judge President Clinton's conduct and his apparent perjuries, for example. I don't think it's been plausibly alleged that any of the evidence Starr has produced is falsified. There are debates about whether he used inappropriate measures to try and get at the facts. Even if he did, it seems to me, the real question for the nation is what should we do about the president, not what we should do about Kenneth Starr -
ANTHONY LEWIS: Stuart, the end justifies the means.
STUART TAYLOR: May I finish? But to go point by point, the idea that it's illegitimate, I've spoken with about five prosecutors at the Justice Department, high-level Clinton appointees. Every one of them agrees that once Linda Tripp had come forward with her allegations and they'd been minimally checked, the law required that an independent counsel investigate. Now, some of them think Kenneth Starr shouldn't have tried to take it for himself and shouldn't have tried to persuade the attorney general to send it to him, as she did. And I agree with that. I think it would be better if someone else had done it, because of Mr. Starr's baggage, because he already had a full thing. But there's no doubt that it should have been investigated. And I think there's little doubt that any aggressive prosecutor would have done many of the things Starr has done. In terms of the January 16th swooping down of Starr's prosecutors on Monica Lewinsky, which was one point, their methods were prosecutorial hard ball. No plausible case has been made by anybody that they were illegal or unconstitutional. If they were, Monica Lewinsky's extremely competent lawyers, the ones she has now - not the one she had originally - would have done something with that. They haven't. Also, I think it is inaccurate to say that they wouldn't let her call her lawyer. They would have let her call her lawyer. What they told her is you're better off if you don't call your lawyer than if you do. They dissuaded her. They wouldn't let her call her mommy. She did call her mommy. Her mommy got on the train from New York and came down while they walked her around shopping malls and was present at the scene. Asking her to wear a wire to see Starr - she refused to do it. There is no convincing evidence that contradicts Starr's statements that he never planned to have her wear a wire to see the president. Leaking like sieves, I think Starr's prosecutors were unwise to talk as much off the record to reporters as they did, as he has admitted doing. But I think there's no persuasive evidence of any grand jury secret leaks coming deliberately from Starr's office. One point of confusion is what's a grand jury secret. I think some people define it much more broadly than I would and more broadly than the courts would. You look like I should stop. (laughing)
MARGARET WARNER: Yes. Let me get Tony Lewis to - Tony Lewis, you have written - I wanted to get to the perjury issue, because Stuart Taylor just said, look, all of this may have been terrible, but nothing - invalidates the accusation that the president may have committed perjury. You've said - you've written Ken Starr set a perjury trap. Explain that. And are you saying that that invalidates that part of the investigation?
ANTHONY LEWIS: No. Not invalidates. It's - you know, what I think I could say here is what Stuart has said very competently, is that the end justifies the means. I don't believe that. That's a sort of Joe Stalin's view of life.
STUART TAYLOR: I don't either -
ANTHONY LEWIS: Joe Stalin, Stuart, forgive me. But I think it is a doctrine that we reject. We think procedural fairness is very important in this country and I certainly do. And the end of getting the president or showing that he committed perjury does not justify overbearing means. And I've only just touched on some of them. One of them we haven't mentioned is the trite, overdone nature of Mr. Starr's report, which, with all the hundreds and hundreds and hundreds of pages, he couldn't just seem to find room for the quote from Monica Lewinsky that she had never been asked to lie. And that was, I think, really outrageous. Well, let me come to Margaret's question here. The perjury trap - that was a trap in two respects, I think. First of all, when Mr. Starr got the information from - or the alleged information from Linda Tripp, I suppose it was a certain duty to prevent any offense occurring. To the contrary. He waited and waited - five days - until the president had made his deposition. And he thought then that what Linda Tripp had told him would be enough. But the real trap came at the very end with the subpoena to the president to go before a grand jury. I think Stuart will confirm this, that the ordinary universal Justice Department rule is that prosecutors do not summon the targets of investigations before grand juries, because they - there they will invoke their constitutional right not to incriminate themselves. And it's wrong to make them do that just to parade them before a grand jury. But Mr. Starr bet that the president would not be able to do that because it would be politically difficult to invoke that constitutional right for him. And he then had the president in a situation where under oath he either had to confirm - agree with what he had said on the deposition, in the deposition, which was false, or disavow it. And the president tried to thread his way through like a lawyer in ways that some think - but I'm a little doubtful about - was perjurious. But the trap was calling him before the grand jury.
MARGARET WARNER: Stuart, what about that point?
STUART TAYLOR: The trap? Well, I disagree emphatically as to the meaning of the Justice Department policy and as to the idea of a trap. I've looked at the Justice Department policy on when you subpoena the target of an investigation. I've studied it. Now, if it said what Tony Lewis says it says, it would be very simple. It would say thou shalt not subpoena the target to testify in a grand jury. It doesn't say that. It's much more qualified. It says you shouldn't do it if you know the target would just claim the Fifth Amendment and, therefore, the whole exercise is simply an effort to humiliate the target into having them make that claim. The inference - the logical implication is that if you expect the target, for whatever reason, would not invoke the Fifth Amendment - as, indeed, the president's people had said all along he would probably not do for political reasons - then there's no policy against the subpoena. Therefore, I don't think it violates policy. Also, I think what Mr. Lewis is saying comes down to saying, well, of course, the president had to lie to the grand jury to avoid admitting that he'd lied before. Well, first, he didn't have to lie to the grand jury. He could have admitted that he lied before and made a legal defense that it wasn't material. He could also have invoked his Fifth Amendment rights. He could also have done what I think his lawyers probably urged him to do, which was invoke a separation of powers objection to being subpoenaed to testify before a grand jury. Passing all those options - not for legal reasons but for political reasons - against the advice of his lawyers, he went into the grand jury, and I think the evidence is very powerful that he told bald, unambiguous lies to a federal, criminal grand jury, in particular when he contradicted Monica Lewinsky's account of what they did before. And he did that not for the purpose of protecting any privacy. There wasn't any privacy left. He admitted what he had to admit, given what was on the dress. The purpose of lying to the grand jury was to avoid admitting that he'd lied before.
MARGARET WARNER: Tony Lewis. Do you want to respond to Stuart's response?
ANTHONY LEWIS: (laughing) Well - we don't agree about the lie. Of course, I think what the president said was - did and said was obnoxious and Stuart Taylor and I don't disagree about that at all. But I think perjury is not just a simple matter. And I'm sure Stuart Taylor, the lawyer, would agree with that. And I'm sure the Justice Department people would say that it's very rare to call targets before grand juries, though the policy is framed as Stuart said. It is not just a lawyer's trick to say that you mis-spoke but that it wasn't a lie. It's - it's the way perjury is defined. Perjury is a very tricky offense, and the rules in the federal courts are, therefore, very careful before you can convict somebody of perjury. It's a lot more than just what you and I think of as a lie.
MARGARET WARNER: Mr. Lewis, can I interrupt you and let me ask you briefly -
ANTHONY LEWIS: Sure.
MARGARET WARNER: -- before we go - what's the bottom line here, as far as you're concerned? What should Congress do now? They're about to - poised to open an inquiry based on this report.
ANTHONY LEWIS: Well, -- we know what Congress is going to do, or what the House is going to do, because the House is Republican-controlled, and the Republicans want to go through a long impeachment inquiry. My own feeling is that what happened in this - unfortunate though it was - was not a high crime or misdemeanor - far from it. It did not affect the fundamental working of the United States Government. I - I just can't believe - I want to - if I may - and I don't be unfair, Stuart - he and I are student and teacher from long ago and friends - but I want to read something that Stuart said after he had talked with Mr. Starr about working for him and then decided not to. He wrote in a column, "Mr. Starr is everything that Clinton is not - honest, principled, and utterly inept at spin. But the facts in Starr's report will pop the rivets in Clinton's fragile ship." That was last April, Stuart. Did you know then what the report was going to say?
STUART TAYLOR: I didn't know then what the report would say, but I knew then what was already apparent to anybody whose eyes were open, which was that there was very powerful evidence that the president had perjured himself to Paula Jones's lawyer and Judge Susan Weber Wright in the January 17th deposition and then to his cabinet and to the country. And I would say that what I predicted in the passage you just read has, in fact, come true later than I expected in one sense and earlier in another. The president was - had to admit that he had lied, in essence, in his August 17th statement to the nation. Thereafter, he has been denounced by every prominent Democrat in the country. They disagree - many of them - as to what the remedy ought to be, but none of them disagree that the president's conduct was deplorable, and very few of them disagree that he should just openly admit that he lied in the Paula Jones deposition at the very least. So I had no inside information, if that's the implication, but I think it was fairly apparent then and it's utterly evident now that the president had lied to the nation and to the courts.
ANTHONY LEWIS: And I agree with you, that it was terrible and wrong. I'll never forget his waving that finger at us, saying he did not have sex with that woman, Monica Lewinsky. But the notion that sex and lying about it is an impeachable offense seems to me to be grotesque and one that would have excluded many of the political leaders in this and other countries from office.
STUART TAYLOR: Could I quickly respond to that?
MARGARET WARNER: Yes, please.
STUART TAYLOR: As a general matter, I agree. I voted for President Clinton in 1992, even though I was convinced that he had lied about Gennifer Flowers. What's different? Here's what's different. He was not just hauled into court to testify about his sex life on a whim. He was hauled in a sexual harassment lawsuit based on the allegations that he had favored women who succumbed to his sexual favors in the workplace, who were beneath him, and had punished those who didn't. Paula Jones made that allegation. Judge Susan Weber Wright - building on precedence - ordered him to answer those questions. He could have claimed some kind of privilege and said, no, the law can't mean that - he - and appealed. He did not. So he went in and lied. So I think calling this lying about sex is a little bit - and then he used the entire machinery of the White House to propagate that lie for seven months. Then he went into a grand jury and repeated it. Another quick side point. Tony earlier mentioned the end justifies the mean question, brought up Josef Stalin - I don't think Kenneth Starr, whatever else you make of him, can be compared to Josef Stalin. For better or for worse, we live in a country where prosecutors and defense lawyers tend to go up to the limits of the law. As to the law, Starr has won every single litigated case that I can think of in which he was - his investigative methods of the president were under attack. He did lose a Supreme Court case when he was trying to get Vince Foster's lawyer's notes. But on executive privilege, attorney/client privilege, -- secret service privilege, he won them all.
MARGARET WARNER: All right. Tony -
ANTHONY LEWIS: And the price of that - the price of that is going to be very high to this country and to future presidents, in my opinion, because of the overkill by Mr. Starr. We're going to have presidents who can't have confidential conversations with their lawyers, who have to worry about what Secret Service men may overhear and tattle about. I think that's not the way we want to run a presidency.
STUART TAYLOR: Not if we repeal the independent counsel statute. Can we agree on that?
ANTHONY LEWIS: Hurrah! Yes, we can agree on that. Done.
MARGARET WARNER: All right, gentlemen. On that agreement, we'll leave it there. Thank you both very much.
STUART TAYLOR: Thank you.