What might have been one of Kenneth W. Starr’s better weeks has turned out less well than it should have–in PR terms, at least–thanks to a prosecutorial bungle that spurred delighted Clinton surrogates to cry, ”Gestapo!”
An egregiously overbroad Starr subpoena accomplished the improbable feat of making a 1st Amendment martyr out of Sidney L. Blumenthal, a former journalist who had recently gone to work at the White House, amid hoots from pressies that he’d been working there all along. Blumenthal, a confidant of Hillary Rodham Clinton’s, has been busily hatching conspiracy theories–some call him G.K., for Grassy Knoll–and masterminding attacks on Starr.
The subpoena for Blumenthal was hastily drafted by prosecutors furious about a barrage of Clinton-camp smear tactics, including rumors about two of their colleagues’ sex lives. The subpoena raised legitimate concerns about the danger of prosecutors’ persecuting their critics, especially those who act as sources for reporters. The press went into a predictable 1st Amendment frenzy, diverting attention from at least three revealing White House moves, all of which may prove more important in the long run:
* Like Richard Nixon before him, President Clinton tried (as secretly as possible) to use executive privilege (and/or attorney-client privilege) to deny prosecutors evidence they deem relevant to suspected criminal obstruction of Starr’s investigation into the Monica Lewinsky affair and other other matters. The privilege claim could move on a fast track to the Supreme Court by summer. Based on the sketchy information that has dribbled out, the claim seems so weak as a matter of law as to risk a lopsided rebuff, like the one the Justices dealt Nixon in 1974 (by 8-0), and the one they dealt Clinton himself last May (by 9-0), when he claimed to be immune from Paula Jones’s sexual harassment lawsuit as long as he is President. But if the privilege claim buys Clinton a few months, it will help delay any impeachment proceeding until Clinton is so far into his second term that few politicians would want to put the country through the trauma.
* The Clinton camp was caught in what looked like a lie: the statement on Feb. 22 by press secretary Michael D. McCurry, denying that ”any of President Clinton’s private attorneys has hired or authorized any private investigator to look into the background of . . . prosecutors or reporters.”
Then came an acknowledgment that at least one private investigator–Terry F. Lenzner, who heads Investigative Group Inc.–had been retained since 1994 by one of Clinton’s private law firms (Williams & Connolly) to gather (among other things) ”public information” about the backgrounds of Starr’s prosecutors.
McCurry nonetheless insisted that his Sunday statement had been ”entirely accurate.” His Clintonian reasoning was that looking into public information about a person’s background was entirely different from looking into his background.
* A White House official was quoted in The New York Times on Tuesday blandly referring to ”our continuing campaign to destroy Ken Starr.” This comment resonated with the Feb. 8 statement on ABC by former Clinton aide George R. Stephanopoulos that ”White House allies” were vowing to ”open up everybody’s closets” in a last-ditch effort to destroy Clinton’s perceived enemies.
Starr complained on Wednesday of ”an avalanche of lies” swamping his office. His staff evidently suspect that the Clinton camp is already engaged in a campaign of Nixonian dirty tricks, including 1) hiring a number of private investigators to rake through the personal and sexual lives of Starr and his prosecutors; 2) spreading false rumors to reporters, such as an allegation that a Starr prosecutor had been disciplined by the Justice Department for becoming romantically involved with a defense lawyer during a 1994 trial; and 3) initiating leaks to the press about witness statements and then blaming Starr for them, both in public statements and in a pending contempt-of- court motion.
Starr’s Washington office has received some 100 inquiries from reporters in the past month based on ”plain misinformation about some of our people,” according to Jackie Bennett, the career deputy who heads the office. ”Reporters are saying unequivocally that they are getting this from the White House,” he adds.
Starr’s staff won’t say what (if any) factual basis they have for suspecting that Blumenthal (or Lenzner, or White House lawyer Lanny Breuer, who were also subpoenaed) is involved. After the Clinton side complained that the Blumenthal subpoena was an abuse of power, Starr responded, ”We are using traditional and appropriate techniques to find out who is responsible (for spreading misinformation) and whether their actions are intended to intimidate prosecutors and investigators, impede the work of the grand jury or otherwise obstruct justice .”
Starr’s words tracked a federal felony statute that punishes by up to 10 years in prison anyone who ”corruptly, or by threats . . . , or by any threatening . . . communication, endeavors to influence, intimidate, or impede” any prosecutor or grand juror.
However, the 1st Amendment protects the rights of people under investigation and other citizens–including officials such as Blumenthal–to criticize prosecutors. This protection clearly extends to harsh, unfair, and even ugly personal attacks. While it is debatable whether the 1st Amendment would shield recklessly false allegations against prosecutors by persons under investigation, it is quite unusual for prosecutors to slap even their most mendacious critics with grand-jury subpoenas.
The overbroad subpoena of Blumenthal covered all of his communications with reporters about Starr’s staff. This drew sharp criticisms, not only from Clinton allies such as Harold Ickes–who said it ”smacks of Gestapo” and ”outstrips McCarthyism”–but also from civil libertarians, media lawyers and some former prosecutors. As William Safire wrote, Starr ”let the most-adept abusers of power in a generation taunt him into making them appear to be the pitiable victims of his own abuse of power.”
To some extent, the magnitude of the reaction reflected the habitual solipsism of the press, which sees any effort to expose leakers as an attack on its 1st Amendment rights–except, it now seems, Clinton’s effort to expose any leakers who may work for Kenneth Starr.
More-sober critics faulted Starr’s staff for unwisely chilling Blumenthal’s 1st Amendment rights–and potentially abusing their own vast powers–by demanding disclosure even of clearly legitimate efforts to disseminate truthful criticisms of Starr’s staff. One such example was the White House’s circulation of news reports of a $ 50,000 court sanction some 11 years ago, based on a finding that Bruce Udolph–now on Starr’s staff, then a state prosecutor in Georgia–had ”maliciously and arbitrarily” kept a suspect in jail for four days with neither a bail hearing nor access to a lawyer.
Absent from most public discussion was a potentially strong justification for subpoenaing Blumenthal: If Starr’s prosecutors have any basis for suspecting that the Clinton team initiated some of the news leaks that have been blamed on Starr, surely it’s proper for Starr to investigate that. A person who murders her mother, and then accuses her sister of doing it, can’t complain of retaliation if the accused sister tries to prove what happened.
Meanwhile, Clinton’s brigade of lawyers fenced for a week with Starr over what questions Bruce R. Lindsey can be compelled to answer, without publicly acknowledging (at this writing) that Clinton was taking refuge behind executive privilege.
Any effort to use that privilege to shield Clinton- Lindsey discussions about Monica Lewinsky or other women, or about witnesses, would have to clear two big hurdles. First, executive privilege protects only communications made for the purpose of ”advising the President on official government matters.” It would be a stretch to find anything ”official” about alleged presidential trysts with women near the Oval Office.
In addition, Starr’s prosecutors see the subpoenaed Clinton-Lindsey communications as possibly vital evidence bearing on whether the two men have been part of a conspiracy to obstruct justice.
A claim of attorney-client privilege might be more plausible (Lindsey is a deputy White House counsel), but still a likely loser. Even the Clinton Justice Department–in an unprecedented break with a President–last spring rejected a Clinton claim of absolute privilege for consultations with White House lawyers.
Thus, it seems the Clinton team is gambling less on a court victory than on a strategy of bogging Starr down in legal trench warfare, distracting him with smear campaigns and goading him into blunders like the Blumenthal subpoena. The longer such tactics can delay any proof of impeachable offenses, the better the chances that Clinton can limp to the end of his term–which may now be his primary goal.