The Magazine


Mar 2, 1998, Vol. 3, No. 24 • By TOD LINDBERG
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INDEPENDENT COUNSEL KENNETH STARR believes that, constitutionally, his office cannot indict the president of the United States. What, then, of the evidence the prosecutor is assembling suggesting that Bill Clinton may have lied under oath, urged others to do the same, rewarded them for doing so, and generally obstructed justice in an effort to limit the collateral damage from Paula Jones's charges of sexual misconduct? The short answer is that Starr will refer any such evidence to the House Judiciary Committee, which would decide whether the information warranted impeachment for "high crimes and misdemeanors." If the House votes to impeach, the Senate then tries the case.

Any such resolution of the case is a long way off, to put it mildly. In the meantime, though, something very important has changed, and that's the role of the independent counsel's office itself. This is the first time that an independent counsel has ever galloped off in hot pursuit of a president. The institution was established after Watergate. And Iran-contra prosecutor Lawrence Walsh never really got close to Reagan or Bush, despite his belief that they were engaged in a criminal conspiracy to obstruct justice. At this point, it's unclear whether Starr's office fully understands how deeply its investigation has advanced into uncharted territory. And it's entirely clear that the GOP Congress has barely a clue of what lies ahead. Republicans on Capitol Hill have been mainly congratulating themselves on the fact that the press has been hammering Clinton brutally, thus enabling Republicans to shut up and look statesmanlike as the scandal unfolds. The main GOP response has been to say, Let the Independent Counsel do his work. House leaders have talked behind the scenes about how to fund a congressional inquiry. But the fact that it really is going to be up to them to bring Starr's work to some sort of conclusion seems not to have sunk in.

In general, the duties of an independent counsel are no different from those of a prosecutor in a U.S. Attorney's office. To be sure, an independent counsel is in the unusual position of having as much time and money as he wants to pursue a particular person or group, subject only to the supervision of his jurisdiction by the courts and the possibility of removal for cause by the attorney general. But his investigation is supposed to adhere to standard Justice Department procedures. In other words, he has to collect evidence; build a case; seek an indictment when he has reached the conclusion that he has enough evidence for a jury to convict; and, in the absence of a plea agreement, present his case in court.

Except when he's zeroing in on the president. The Constitution doesn't explicitly state that a sitting president cannot be indicted. But the notion is problematic. After all, the Constitution vests the entire authority of the executive branch in the president; that authority includes law enforcement. Is the president therefore indicting himself? How can he? Why would he? True, the independent-counsel law muddies the unity of executive authority by creating a prosecutor who operates independent of the president and the attorney general, and the Supreme Court, for better or worse, has given its blessing to the arrangement. But Starr takes the main-stream view that this blessing would not extend to indicting, in the name of the people of the United States, the man constitutionally empowered to act in the name of the people and duly elected by them.

So here we have a prosecutor who, in relation to the most important subject of his investigation, is engaged in a process severed from its most drastic possible outcome: indictment in the expectation of conviction. Starr is as free as ever to exonerate his subject; it's just that he can't prosecute this one. In effect, that task belongs to the House, starting with its Judiciary Committee.

These days, you tend to hear with some frequency that while the president may have public opinion going for him, the independent counsel, with his grand jury and subpoenas and prosecutors and investigators, has a formidable weapon in the law. Well, sure. But this strange weapon can strike everyone but its ultimate subject. It's time to update the old saw: A prosecutor can indict a ham sandwich if he wants to, but he can't indict Bill Clinton.