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Analysis: Turning Tables on the Prosecutor

Starr Independent counsel Kenneth Starr during his testimony on the first day of impeachment hearings. (Lucian Perkins — The Washington Post)

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  • By Ruth Marcus
    Washington Post Staff Writer
    Friday, November 20, 1998; Page A1

    For much of the day yesterday, it looked like the House Judiciary Committee was weighing the impeachment of Kenneth Winston Starr, not William Jefferson Clinton.

    In a sense, the focus on Starr rather than Clinton was logical. For the most part, the committee – much like the country – has already made up its mind about what it thinks about the president's conduct and whether it believes it should lead to his impeachment.

    Little that the independent counsel had to say yesterday seemed likely to change any of that. No committee Democrats plan to desert the president, and enough Republicans appear inclined to support impeachment on at least some counts that the committee appears destined to send an impeachment resolution to the full House.

    As a result, yesterday's session had a touch of Kabuki theater about it, a formalized spectacle in which all played their assigned roles to little ultimate effect.

    "When people go to bed tonight, they'll be in the same place they were when they got up this morning," said one White House official who did not want to be named.

    Sen. Arlen Specter (R-Pa.) agreed. "Ultimately," he said. "I think that the hearing will not change many minds."

    Indeed, the day was less evidentiary hearing than partisan venting, with essentially no debate about the facts of the case but extensive argument about how they were gathered and what they add up to.

    "The hearing today is not a trial, nor is it White House versus Ken Starr or Republican versus Democrat," Hyde said hopefully at the start of the session. As the day wore on, culminating in a standing ovation for Starr by many observers in the room with Hyde joining the applause, the truth of the first part of that statement seemed undeniable. The second half proved decidedly over-optimistic.

    The two sides for the most part played on completely different turfs – Democrats assailing Starr (and to a lesser extent Republicans' handling of the impeachment proceeding) and Republicans gamely seeking to turn attention back to the person whose conduct had generated the impeachment inquiry.

    While both had said in advance that they would make an effort to divvy up the subject matter in order to elicit useful information, there was no apparent logical thread to either side's line of questioning, a situation further confused by the alternating Republican and Democratic questioners. The day also contained a significant amount of speechifying on both sides.

    Still, with the American public's direct exposure to Starr largely confined to television footage of him in his McLean driveway, the marathon session offered the first real opportunity to hear from the independent counsel about his four-year investigation of the president.

    For Democrats, the game plan yesterday was to shift the focus from the president to Starr, undermining the message by attacking the messenger and his methods.

    Indeed, the questioning by the Democrats' chief lawyer, Abbe D. Lowell, largely avoided addressing whether the facts amassed by Starr were correct or warranted impeachment. He focused instead on such matters as prosecutors' treatment of Monica S. Lewinsky on the day she was first confronted, and even such seemingly peripheral matters as whether Starr's press release describing that encounter was misleading.

    Likewise, when the president's lawyer, David E. Kendall, got his crack at interrogating his adversary of four years standing, Kendall opened with "the simple but powerful truth that nothing in this overkill of investigation amounts to a justification for the impeachment of the president of the United States."

    Then he plowed ahead with questions about issues like Starr's absence at critical witness sessions, grand jury leaks, and why the prosecutor waited until yesterday to clear the president on the travel office firings and the gathering of FBI files.

    Saying that Kendall's time was running out, Hyde noted, "you may want to get into the facts." He offered an additional half-hour, at the end of which the allegations in Starr's referral remained unexplored.

    Republicans had the opposite goal. Their questioning was designed to use Starr to remind the American public – a large majority of which wants Congress to drop the matter, and quickly – about the seriousness of Clinton's alleged misconduct.

    As Rep. Lindsey Graham (R-S.C.) put it, "Without public outrage, impeachment is a very difficult thing, and I think that is an essential component of impeachment. ... But the most bizarre thing to me, in these odd times in which we live, is that the public outrage is directed at you and not at the person who has allegedly done all these things."

    David Schippers, the Republicans' chief counsel, had the last round of questioning, and used it both to defend Starr and the fairness of the process against the day of Democratic attacks and to underscore the seriousness of Clinton's conduct.

    "Did I understand you earlier to say that lying under oath, perjury and obstruction of justice strikes at the very heart of the judicial system of the United States?" Schippers asked.

    "Absolutely," Starr replied.

    For Starr, the hearing presented a nationally-televised chance to dissipate some of that outrage and combat the popular caricature of him as a partisan prosecutor obsessed with getting Clinton – a "federally paid sex policeman," as the ranking Democrat, Rep. John Conyers Jr. (D-Mich.), put it.

    On that score, Starr performed well, calmly deflecting Democratic attacks and coming off more like a mild-mannered if somewhat self-righteous former appellate judge – invoking "the sanctity, yes, the sanctity, of the judicial process" – than the maniacal Clinton-hater that Democrats sought to portray.

    It was only as the session drew to a close, needled by Kendall about his $1 million-a-year law firm salary and whether his agents had investigated a witness's adoption of a Romanian orphan, that Starr's temper briefly flared and he glared at the president's lawyer.

    "I thought that what we were here today to discuss is a referral which we believe contains substantial and credible information of possible impeachable offenses by the president of the United States," he retorted. "What a particular FBI agent asked is to my mind quite far removed from the sober and serious purposes that I thought brought us here together."

    Throughout the day, Starr struck a "reasonable minds can differ" stance in response to an array of assaults on his conclusions. He took "gentle issue" with one statement by Lowell, and, when Lowell criticized Starr's 453-page report as a "referral with an attitude," calmly responded, "Obviously this body is entirely at liberty to reject this referral as not being substantial or credible. It is entirely your judgment. ... I was called upon to give you my judgment and my assessment, and I have done that."

    As the questioning bounced back and forth between Republicans and Democrats, the majority and minority were like partisan ships passing in the night, concentrating almost entirely on different issues.

    The potential subjects of Democratic attack – allegations about conflicts of interest, grand jury leaks, badgering of witnesses, failure to include exculpatory evidence – were well known to Starr in advance, and he gave little ground in conceding error, either in his personal conduct or the handling of the investigation.

    As to perhaps the most common subject of questioning – the treatment of Lewinsky – Starr finally let a slight bit of exasperation slip in response to Rep. James E. Rogan (R-Calif.)

    "Nothing in this referral is affected by the events at the Ritz-Carlton. So it is ultimately a very interesting academic question that embodies more a 'what can we attack the prosecutor with' [approach] than anything else."

    © Copyright 1998 The Washington Post Company

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