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Tomorrow Shouldn't Happen

By Fred Barbash
Sunday, August 16, 1998; Page C01


At this historic moment, as we cross the threshold to the first-ever grand jury interrogation of a president, I respectfully suggest that we step back.

Kenneth Starr should cancel Clinton's grand jury appearance, finish his report and walk it over to Capitol Hill where it belongs. Sooner or later, under our constitution, the fate of the president must be a political question, not a legal one. Why not sooner?

The purpose of this plea is not to spare Clinton, but to spare us. Neither the rule of law, nor any particular law, requires a prosecutor to bring a target before a grand jury. It is a matter of discretion. The independent counsel should exercise that discretion in the interests of the people, whom he represents, and pass – especially since the apparent purpose of Clinton's appearance is less to elicit information about a past crime than to get him to commit a new one. Let the House Judiciary Committee decide whether or not a president must testify under oath.

The alternative is a dramatic ratcheting up of the stakes, a new beginning to this saga rather than the beginning of the end. There will be no stopping this train – and it will be quite a ride.

Until now, the worst lie President Clinton might be accused of telling, as far as we know, was in a deposition in a defunct civil suit. Once the president has testified under oath to a grand jury, the perceived need to determine his truthfulness will, overnight, become far more pressing, the potential

crime more grave. Thus the unease hanging over Washington, reflected in the floated ideas for "mea culpas," for strategies, for bizarre interpretations of the definition of sexual relations. It is disturbing to read about a president forced to scrounge up only a few minutes to contend with the financial collapse of Russia, so he can return to prepping for an arguably unnecessary grand jury date.

If the president says he didn't have sex with Monica Lewinsky, we confront the hideous prospect of a national airing of her linen, if it really exists, and of the president's genetic instructions, if they really are on it. ("What will it be, Mr. President, a hair or saliva sample?") Or we may witness a ludicrous national parsing of the definition of "sexual relations" that will primarily benefit stand-up comics. If there is a case to be made that the president has lied to the grand jury, an impeachment hearing, nationally televised, could follow.

If he says he did have sex with her, we lose the dress, but get months of debate over the relative seriousness of lying in the Paula Jones case. And "debate" is too gracious a word for the snarling exchanges already on TV every Sunday morning.

And if you think you've seen the press in full fright, wait until the competitive frenzy over which organizations get what leaks about the president's testimony. It began last week, even before the encounter. Then there will be more investigations about the leaks, adding to the one already underway about earlier leaks.

What would be the consequences of stopping?

Many will say that if Starr's investigation does not proceed, we will never get to the bottom of this alleged scandal. Some of us can live with that. But trust me, my colleagues in the media will keep looking anyway for the elusive truth about the president and the intern. America might actually learn more when Lewinsky, Linda Tripp and everyone else who now says they can't comment because of the investigation publish their books. Maybe we'll even hear from Clinton.

Others will argue that to stop now will send a message to future presidents that they need not fear independent counsels and grand juries, that we will lose a deterrent. But if Clinton is guilty of something, it only proves that there is no deterrent: The alleged attempt to obstruct justice in the Paula Jones case took place while Starr was on duty. In fact, stopping now could actually save the principle of independent executive branch scrutiny embodied in the institution of independent counsel by defusing accusations of a prosecutor run amok.

And what about the rule of law? The rule of law is fundamental, but respected when grounded in reason. Some prosecutors reason that calling a target is important; others that it is not. It a matter of judgment. Indeed, many legal scholars, not to mention the American Bar Association, have recommended that even when targets are called, their appearance should be optional rather than mandatory. A number of state courts have also held that a potential defendant summoned before a grand jury is protected against the state's using his self-incriminating testimony to procure an indictment, even when he hasn't claimed a Fifth Amendment privilege.

This is a particular breed of grand jury appearance. Read Jeffrey Rosen's article on "the perjury trap" in the Aug. 10 New Yorker to understand how often this technique is used when a prosecutor can't make a case on an underlying offense. Doing this to a politician, who is theoretically but not realistically able to risk exercising his Fifth Amendment privilege against self-incrimination, is highly questionable.

The rule of law is not the law of gravity – what comes up does not necessarily have to come down. Not every investigation must be pursued by every possible means available. All crimes are not equal and not every crime prosecuted. Discretion is basic to our system, and prosecutors exercise it freely.

If the rule of law were so rigid, Starr could not and would not have agreed to Clinton's lawyers' presence during the questioning or to his giving his testimony via closed-circuit TV. This is not exactly the "atmosphere conducive to truth telling" described by the Supreme Court in 1977, "a grand jury room. ... before a body of neighbors and fellow citizens."

Those upset by dropping the Clinton-Lewinsky independent counsel probe will also ask what sort of example it would set for the American people, especially for our children. They'll say that Americans will lose faith in their government. But is the spectacle we are now witnessing faith-building? Is the example for our children edifying?

Finally, they may say, assuming Clinton is guilty of something, that we'd be letting him get away with it, that we'd be handing him the pass he's been counting on. That might be true. If the president is guilty and if he plans on lying tomorrow, canceling the grand jury appearance would likely mean Congress would not impeach him.

We would consciously, knowingly, decide that the possibility of letting him "get away" with this particular behavior was better than the alternative.

What would posterity think of us? I don't know. But how will posterity judge a government preoccupied with sex and lies, while children are gunned down in schoolyards; while the economies of Asia and Russia implode; while war rages in Kosovo and Angola, and while starvation ravages Sudan; while U.S. embassies are bombed in Africa, money for Social Security runs out, and 41 million people limp along without health insurance?

Of course, ending it now would provoke great recrimination. Voices would be raised. But the stakes would be lowered – to the relief, I venture, of much of America.

Fred Barbash is deputy editor of Outlook.


© Copyright 1998 The Washington Post Company

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