To a degree that is hardly apparent from the slow pace of events–but is central to the White House strategy of delay– Kenneth Starr is in a desperate race against time.
Starr’s evident desire to present Congress with the strongest possible legal case for impeaching President Clinton is at odds with Starr’s need to move before the political calendar makes any such case irrelevant.
The reason is that the closer Starr comes to Jan. 20, 2001, without taking action, the more his investigation–which started four years and $ 40 million ago, under then-independent counsel Robert Fiske–will look like the pointless pursuit of a man well on his way to lame-duckery.
As a result, each passing day is a victory for the President and a defeat for Starr–whether Starr’s prosecutors have spent that day grilling Vernon Jordan before a grand jury, fencing with White House lawyers over executive privilege, trying to get Secret Service agents to say wh at they saw Clinton do, fending off rumors about their own sex lives, or investigating who leaked what to whom.
Starr’s investigation has only three possible outcomes, as far as Clinton is concerned. 1) The independent counsel could make a final report detailing what he has learned and why it does not warrant any type of proceeding against the President. 2) He could seek to have the President indicted and put on trial. And, 3) he could invoke Section 595(c) of the independent counsel statute, which states: ”An independent counsel shall advise the House of Representatives of any substantial and credible information . . . that may constitute grounds for impeachment.”
The first two options seem unlikely. Starr is certainly not acting as if he plans to wrap things up quietly and go home– although that’s what he should do if he cannot produce convincing proof of serious crimes by the President. Nor does Starr seem inclined to seek a criminal trial while the President is in office, since he is said to believe that any such trial would probably be unconstitutional. And whatever may have been the Framers’ intent, it would be grossly irresponsible to seek a criminal trial of any sitting President. We can’t have the commander in chief deciding whether to bomb Baghdad from a courtroom–let alone from a prison cell.
By process of elimination, it seems probable that Starr’s goal is to amass enough evidence to support a recommendation that the House undertake impeachment proceedings. If so, the political calendar must be–and should be–a critical part of his planning. That’s because any impeachment referral will lead to partisan deadlock, unless some respected congressional Democrats are moved by events to call for Clinton’s resignation or ouster. And that will not happen unless the most damaging evidence against Clinton is driven home to Congress and the public through congressional hearings before this year’s election campaign gets under way in earnest.
The most dangerous time for Clinton will thus be this summer and fall. The danger comes not so much from congressional Republicans, many of whom would prefer to let scandals simmer, so that they can run in 2000 against Democrats led by a bleeding Bill Clinton rather than a freshly enthroned Al Gore. The real danger comes from key Democrats.
If Starr produces strong evidence of serious Clinton crimes, and if House Judiciary chairman Henry J. Hyde of Illinois spreads that evidence before the public during weeks of televised hearings, and if Clinton’s polls start to plummet, then respected Democrats such as Sens. Daniel Patrick Moynihan of New York and Robert Kerrey of Nebraska might talk to Clinton about stepping down for the good of the party. Colleagues more noted for partisanship would not relish running for reelection under the banner of a President crippled by scandal.
Would it be improper for Starr to take such political calculations into account? No, because the statute’s impeachment- referral provision imposes on any independent counsel a grave political responsibility to bring any serious accusations of criminality to a dignified and orderly conclusion. And surely Starr understands that a badly timed impeachment referral would do the nation more harm than good.
If Starr is realistic about the political calendar, he may conclude that he should either make the case for impeachment by mid-May, or forget about doing so at all. Such a schedule would probably mean seeking Clinton’s sworn testimony before any impeachment referral and–after the referral is sent to the House–continuing to pursue disputed evidence by seeking expedited Supreme Court rejection of any Clinton claims of privilege.
(Starr might also conclude that his own resignation at some point in the next few weeks would lend more credibility to the process, because it would clear the way for a less controversial successor to make the final calls on whether to press for Clinton’s testimony and to recommend impeachment.)
One reason for a rushed timetable would be to preempt events beyond Starr’s control that otherwise might delay or even derail his investigation–in particular, the trial of Paula Jones’s sexual harassment lawsuit, now set for May 27.
Some in the Clinton camp have said that their strategy is to tie Starr in knots until the Jones trial–with claims of privilege, complaints about leaks, attacks on the prosecutors, stalling tactics by friendly witnesses, and other delaying and diversionary moves–and gamble on a pro-Clinton decision by the jury, or even summary judgment by Judge Susan Webber Wright. The Clinton spinners could then put Starr on the defensive on the critically important public relations front. While the evidence likely to come out at the Jones trial would be ugly, Clinton’s reputation as a womanizer is already firmly established.
A hypothetical Clinton victory over Jones would, of course, be of little relevance, as an analytical matter, to the questions being pursued by Starr: whether Clinton has lied under oath and orchestrated a conspiracy to obstruct justice to cover up his conduct with two other women (Monica Lewinsky and Kathleen Willey), who worked in the White House; whether the Clintons, as part of their Whitewater activities, participated in the looting of Madison Guaranty Savings & Loan; and whether they have illegally covered that up.
But the past few weeks have proved the formidable capacities of the Clinton publicity machine to use events of little real relevance to the President’s probity–such as Judge Wright’s decision in late January to exclude evidence about Monica Lewinsky from the Jones case–to divert attention from more-important questions, such as whether Clinton lied repeatedly under oath in his Jan. 17 deposition in that case.
An impeachment referral by Starr in the wake of a Clinton victory over Paula Jones would consequently be about as welcome, in a Capitol populated by pusillanimous pols, as Jones herself would be in a Georgetown salon full of fastidious feminists.
Paula Jones aside, Starr could not very well afford to wait even until June 1 in any event. At least two or three months would be eaten up while the House Republican leadership fretted about many things–including threats by the Clinton camp to ”open up everybody’s closets,” in the words of George Stephanopoulos–while House Republicans and Democrats brawled over the resolutions necessary to launch and set parameters for any impeachment inquiry; and while the bitterly divided House Judiciary Committee added dozens of new staff members, digested Starr’s evidence and sought to amass more.
That would bring us to the monthlong recess starting on Aug. 9. And any effort by Republicans to begin hearings after that recess–and thus to display such evidence as the conflicting videotaped depositions of Kat hleen Willey and of the President, on what happened when she went to the Oval Office to ask him for a job–might meet with furious objections from the Democrats on the Judiciary Committee. Some would no doubt accuse Republicans of a cynical effort to turn this fall’s elections into a carnival of sexual sleaze.
Under such circumstances, it would be almost impossible to begin a sober, bipartisan, public exploration of the evidence for and against Clinton–or to focus public attention on anything but bickering–in the closing months of the election campaign.
After the Nov. 3 elections, Congress will probably recess again until 1999. And by then, anyone pressing for impeachment hearings would meet with plausible objections that it might make little sense for Congress to put the nation through months of trauma in pursuit of a President already approaching the end of his second term.
Speed has not been Kenneth Starr’s strong suit so far. But the logic of the current situation, according to House Republican staff members, is that if he is going to proceed against the President at all, he should do it by May 15.