Some in the Law Uneasy With Starr's Tactics
By Ruth Marcus
Some of the tactics Starr has used -- surreptitious taping, forcing witnesses to testify against their will by granting them immunity -- are simply standard prosecutorial tools that may not look particularly attractive when put under a microscope. Starr himself said last week that his office was staffed by "career prosecutors" who were "going by the book."
But a number of former federal prosecutors have expressed discomfort not just with the new focus of Starr's investigation -- which arises from President Clinton's private conduct -- but with the arsenal of weapons that he has deployed to try to make his case against the president. They cite most recently Starr's summoning of Lewinsky's mother, Marcia Lewis, whose scheduled third day of grand jury testimony was put off yesterday.
"Some of what he is doing is absolutely normal, standard prosecutorial investigative techniques, but he has pushed the envelope very hard and in situations where there are legitimate competing interests at stake, he appears to always tip the balance in favor of the aggressive approach," said Bruce Yannett, a former federal prosecutor and Iran-contra prosecutor. "I think many other prosecutors would handle themselves differently and exercise more restraint, especially given the nature of the underlying offense."
Starr had come in for criticism before he began investigating allegations against Clinton involving Lewinsky, both because of his partisan political ties and his allegedly overzealous tactics used in previous phases of the investigation. When Pentagon employee Linda R. Tripp first came to him, Starr wired her for a talk with Lewinsky even before his jurisdiction was formally expanded. His prosecutors then questioned Lewinsky, a 24-year-old former White House staff member, without an attorney present even though she had a lawyer representing her in the Paula Jones sexual harassment lawsuit.
He overrode Secret Service objections and has subpoenaed agents to testify about the president's whereabouts. And he seems poised to inquire further into Clinton's sex life after obtaining discovery material from the Jones lawsuit about other women alleged to have had sexual relations with Clinton.
A number of prosecutors questioned whether these tactics are appropriate if the most serious crimes in question are possible perjury and obstruction in a civil lawsuit, particularly when the allegedly false statements involve private sexual conduct.
"Collectively, the practices are really aggressive, particularly in the context of these underlying allegations," said John K. Carroll, who handled a number of white-collar criminal cases as a federal prosecutor in New York.
"Prosecutors have enormous power so they can do their job properly. Those are relatively unfettered powers. The price for that is we expect from our prosecutors discretion, judgment and restraint," said James M. Cole, a former prosecutor in the Justice Department's public integrity section. "It seems that Starr is really pushing the envelope here a little bit."
That appeared to be the majority, though not unanimous, view of more than a dozen former federal prosecutors interviewed over the past few days. Others disagreed, saying that Starr was justified in proceeding aggressively because the underlying issue involves not sexual behavior but possible perjury and obstruction of justice.
"I'm of the view that it's textbook prosecution practices," said University of Utah law professor Paul Cassell. "You've got to remember there are federal criminal offenses under investigation here and a certain amount of pressure and aggressiveness is inherent in going after those."
Said St. John's University law school professor John Q. Barrett, "It's a hard-hitting process but I don't see dirty punches that Starr is throwing at this point."
Federal prosecutors "use every one of these these tactics every day, and while people may find them distasteful, they are legal, constitutional and used every day by this very same Justice Department all over the United States," said former U.S. attorney Joseph E. diGenova.
The polls, suggest, however, that the American public is finding Starr's approach unsettling -- or at least is being swayed by a White House campaign to convince them that the independent counsel is on a partisan witch-hunt. Asked in a CBS News poll whether Starr was conducting an impartial inquiry or a partisan investigation, 36 percent of those polled termed his inquiry impartial on Jan. 26, five days after the story first broke. By Feb. 8, that number had fallen to 26 percent.
Prosecutors are not supposed to be running popularity contests, but they are always mindful of whether the public -- their ultimate potential jury -- will buy a particular prosecution or will be so turned off by prosecutorial tactics that they will not vote to convict.
The public perception of Starr and the conduct of his investigation could be particularly significant in this context. If he decides a case could be brought against the president, Starr is likely to refer the matter to Congress for impeachment proceedings rather than seek to indict him. And impeachment is inherently a political judgment to be made by members of Congress, who will inevitably be influenced by the public mood. That public sentiment at the moment appears to be heavily in favor of Clinton, who is enjoying record approval ratings.
In Lewis, a figure has emerged with whom the public can readily identify.
Although spouses cannot be compelled to testify against each other except in unusual cases, there is no similar protection for parents and children. Indeed, in a decision last year rejecting claims of a parent-child privilege, the 3rd U.S. Circuit Court of Appeals surveyed the law and said that eight federal appeals courts and every state supreme court that examined the matter had refused to carve out a parent-child privilege. When the Supreme Court in 1996 recognized a psychotherapist-patient privilege, it pointed to the fact that -- unlike the parent-child situation -- all 50 states had enacted some form of psychotherapist privilege. In contrast, only four states provide parent-child privilege.
In refusing to protect parents from having to testify against their children, the appeals court said such a guarantee of secrecy "is not essential to a successful parent-child relationship," because any harm flowing from such testimony would be "relatively insignificant." In addition, the court said, "the existence or nonexistence of a parent-child privilege is probably one of the least important considerations in any child's decision as to whether to reveal some indiscretion, legal or illegal, to a parent."
Still, the Justice Department's guidelines suggest close relatives -- parents, children, grandparents and grandchildren -- should ordinarily not be forced to testify against family members. The guidelines make an exception for situations in which the family member is involved in the criminal activity or there are other "overriding prosecutorial concerns."
In 1988, Sukhreet Gabel, the daughter of retired New York State Supreme Court Justice Hortense Gabel, agreed to have her telephone wired by the FBI and was the star witness in a case against her mother and former Miss America Bess Myerson. Prosecutors alleged that Myerson fixed her boyfriend's divorce before Hortense Gabel by hiring her daughter, but the defendants were acquitted -- in large part, prosecutors believed, because the jury was turned off by the tactic of turning a daughter against her mother. Portions of Lewinsky's taped conversations with Tripp suggest that Lewis was participating in a possible effort to obstruct justice by keeping Tripp from testifying in the Jones lawsuit. That evidence could bring Lewis within the criminal activity exception to Justice Department guidelines, which, under the independent counsel statute, Starr is supposed to follow if possible.
Some former prosecutors noted that because Starr also plans to give Lewinsky some form of immunity from prosecution, her mother's testimony will not end up being used against the former intern.
Said diGenova, "It is everyday common practice to force parents to come in and testify in drug cases, in drug conspiracies, in fraud cases."
Cole said he understood why Starr would seek Lewis's testimony before hearing from Lewinsky. He said Lewinsky's credibility was already so damaged that Starr needs to hear from Lewis and make sure that he gets the most accurate possible testimony from Lewinsky when she appears. "Asking a kid to rat out his parents I find more distasteful than asking a parent to relay the conversation they've had with their kid," Cole said.
But others said they were disturbed by the tactic. "Prosecutors have enormous power and have the ability to issue subpoenas to virtually anyone," Yannett said. "They will rarely subpoena a parent or an immediate relative of the subject of an investigation precisely because of the relationship of trust and love that exists there and what you can do to that relationship to force a parent to testify against a child or a child against a parent. . . . It seems to me that it should be a last resort."
"There is indeed a sense in which the American people are getting a look at the fact that investigation is often a pretty rough business," said former and Harvard Law School professor Philip B. Heymann, who served as deputy attorney general during Clinton's first term. "Having said all that, I do think that it's a little bit hard to think of a time when he [Starr] has made a call in favor of doing the more restrained thing."
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