Legal Battle Getting 'Much Too Personal'
By Ruth Marcus and Roberto Suro
The latest escalation concerns the White House's tactics and Starr's response. The prosecutor charges that Clinton's allies may have gone beyond the bounds in spreading negative information about some of Starr's lieutenants. The Clinton administration retorts that Starr has over-reached in launching an obstruction-of-justice probe of their alleged actions.
"A clear abuse of power," complained White House spokesman Joe Lockhart of Starr's subpoenas to White House aide Sidney Blumenthal and Terry F. Lenzner, the private investigator hired by Clinton's law firm.
Starr responded with a rare prosecutorial explanation of the grand jury's work. He said "misinformation" was being spread about his staff and that he was merely "using traditional and appropriate techniques to find out who is responsible and whether their actions are intended to intimidate prosecutors and investigators, impede the work of the grand jury, or otherwise obstruct justice."
Some legal experts believe both sides have lost their bearings -- and have become so entrenched in their warring positions that it is difficult to imagine any quick or easy resolution of the conflict.
"This thing has grown much too personal on both sides," said Georgetown University law professor Susan Low Bloch. "These events show the dangers of having an unlimited prosecution focused on one target. One of those dangers is that it causes the other side to take measures it wouldn't otherwise. . . . Things have escalated to the point that they are dangerous and it's hard to see how anyone is going to defuse it."
Said New York University legal ethics expert Stephen Gillers, "This case is in a category all by itself in terms of the stakes and in terms of the ferocity of the contest. Not even the O.J. Simpson case revealed this level of antagonism."
Outside the grand jury room, the facts remain murky about what precisely Clinton's allies did to spread derogatory information to reporters and what exactly triggered Starr's extraordinary move to open an obstruction probe -- even if the Clinton team had been peddling negative stories about members of the prosecutor's team.
Lawyers said that it would be common practice for the Clinton team to investigate the professional backgrounds of Starr's staff. But they said it would be highly unusual -- "bizarre," said Bruce Yannett, a former federal prosecutor -- for defense lawyers to scrutinize the private lives of prosecutors. The White House has denied that it has done any such thing, while Starr's spokeswoman has said the independent counsel's office has been deluged with media calls asking about both the professional and personal lives of at least two prosecutors.
"They look desperate if they engage in this stuff," said Columbia University law professor Gerard Lynch. At the same time, legal experts said it was difficult to imagine Starr bringing a federal obstruction of justice case against Clinton or his partisans for what appears to be an exercise of their First Amendment rights.
"I'm stupefied," said criminal defense lawyer Robert Luskin, a former federal prosecutor. "What incredible bad judgment. I don't think you use the grand jury authority to harass people who are criticizing you. . . . If the idea is that somehow you can't accuse the prosecutor of being an unscrupulous dog without trying to obstruct justice, that's crazy."
Gillers summed up the pox-on-both-their-houses attitude of many lawyers interviewed yesterday.
"If the Clinton camp concludes these prosecutors are overzealous and have lost objectivity and then goes out and gathers evidence of equivalent excess in prior matters, that's within the rules of war," he said. "I do have a problem, however, if they were to reveal personal information about a particular prosecutor, say a messy divorce or a child custody battle. I think that is beyond the pale and unbecoming the White House."
But Gillers also said that while he previously thought Starr was justified in aggressive tactics because of the intransigence he has confronted in dealing with the White House, the Blumenthal subpoena appeared to be over the edge.
"I cannot conceive . . . of a legitimate law enforcement purpose in serving the subpoena. I can conceive of a vindictive purpose and I can conceive that it may reflect that Starr has succumbed to being personal about this. . . . What Starr has done is to provide the country with Exhibit A to the president's claim that Starr is out to get him."
The Blumenthal and Lenzner subpoenas are not the only signs that Starr is intent upon pursuing the possibility of obstruction. He also subpoenaed White House lawyer Lanny A. Breuer, a member of the president's legal defense team since the independent counsel began his investigation of whether Clinton had sex with former intern Monica S. Lewinsky and then urged her to lie about it under oath.
Starr had earlier subpoenaed a White House aide, Robert Weiner, to ask whether the White House had encouraged him to press a Maryland prosecutor to investigate the legality of Linda R. Tripp's taping of telephone calls with Lewinsky. Weiner complained after his grand jury appearance that Starr was on a "witch hunt."
The federal obstruction of justice statute offers a broad definition of the crime, covering "whoever corruptly . . . endeavors to influence, intimidate or impede" a prosecutor in discharging his duty or "impedes, or endeavors to influence, obstruct, or impede, the due administration of justice."
Yannett said that the obstruction statute "is very broad and very elastic, and if the purpose of the [Clinton] investigation is to derail or slow down Starr or impede his ability to bring witnesses before the grand jury, an argument can be made that it falls within the scope" of the law.
However, he said, "I think it would be a stretch, and I think there would be incredibly good defenses to it, for example, the First Amendment. If Starr were to bring a prosecution like that, he would be walking into a minefield and would have to be very careful because it could easily backfire and be viewed as nothing more than a heavy-handed effort to crush criticism of prosecutors. Prosecutors routinely get criticized by defense counsel and others, but don't routinely launch grand jury investigations into the sources of those criticisms."
Former federal public corruption prosecutor James M. Cole said that questions about prosecutors "come with the territory. If I was in a high-profile political case, I assumed somebody was probably looking into my background."
Cole also said he had a hard time seeing how that would amount to obstruction of justice. "If the Clinton people went to the prosecutors and said, 'Stop the grand jury or I'll tell the press about this,' that's obstruction of justice. But if the Clinton people go to the press and say, 'Look at these prosecutors who are holier than thou and frankly, their skirts aren't so clean either,' how is that obstruction of justice?"
Then again, said Luskin, "I've never heard of digging dirt up on a prosecutor personally and disseminating it for any reason, never."
Staff writer Susan Schmidt contributed to this report.
© Copyright 1998 The Washington Post Company