By Ruth Marcus
As Starr prepares a report to Congress on Clinton's relationship with Monica S. Lewinsky, the president's legal team is asserting that Starr would exceed his statutory and constitutional authority by submitting a lengthy report that analyzes and summarizes the evidence against the president.
But in rejecting Clinton's request for an advance copy of any report and an opportunity to reply to it, Starr said yesterday that the independent counsel law specifically contemplates such action and that Clinton lawyer David E. Kendall was "mistaken" in asserting he has a right to examine it in advance. He said it is up to Congress, which will receive the report under seal, to decide whether Clinton can respond before it is made public.
The 1978 law provides that the independent counsel "shall advise the House of Representatives of any substantial and credible information which such independent counsel receives, in carrying out the independent counsel's responsibilities under this chapter, that may constitute grounds for an impeachment."
As Starr noted in his letter yesterday, the provision was put into place specifically to permit the independent counsel to follow the course first charted in 1974 by Watergate Special Prosecutor Leon Jaworski, who sent to the House Judiciary Committee a voluminous "road map" detailing the evidence a grand jury had amassed against then-President Richard M. Nixon.
It was unclear yesterday whether Kendall's letter was designed more to convince the public that Starr's report would be inherently unfair, or whether he was also laying the groundwork for another round of court battles.
Clinton's lawyers could go to court to block Starr from sending the report or to require that he obtain judicial approval before doing so. But legal experts gave them little chance of succeeding and warned such an action would risk having the president look like he was using the legal system to hide the facts. "This sets him up to litigate against the transmission of the report, but it's hard to see what the claim would be because the statutory authority Starr has is clear and exception-free," said St. John's University law professor John Q. Barrett, an expert on the independent counsel law.
Kendall in his letter argued that -- while the law requires the independent counsel to send Congress information about possible impeachable offenses -- "nothing in that statute authorizes your office to prepare a 'report' to the House that purports to summarize and analyze evidence."
Starr yesterday said that interpretation was wrong. "In truth, the independent counsel is duty bound to provide Congress with his analysis of the information so that Congress can make its own informed decision," he said.
Kendall's argument was based in part on his interpretation of the role of the House, which under the Constitution is given the "sole power of impeachment." He suggested that permitting Starr to analyze questions of impeachment would be an unconstitutional delegation of congressional powers to the independent counsel.
Kendall also contended that "fundamental fairness" requires that the president's lawyers have a chance to respond to the report and that it then be reviewed by Chief Judge Norma Holloway Johnson. The independent counsel law sets up such a system for the final reports submitted by independent counsels, but the impeachment provision does not have any similar mechanism.
George Washington University law professor Stephen Saltzburg said because the impeachment reporting provision does not explicitly authorize the independent counsel to send Congress grand jury material, Starr might be well-advised to seek judicial approval before proceeding.
Starr's lawyers could seek approval from the three-judge court that oversees independent counsels before transmitting their report to Congress. Once Congress receives the report, it will not be bound to keep the grand jury material secret. It will be up to the members to decide for themselves how they want to handle the previously secret information.
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