In Timing of Starr Report
By Ruth Marcus
Democrats in the White House and Congress fought a losing battle with Republicans yesterday over the timing of the release of independent counsel Kenneth W. Starr's report, saying it was unfair not to allow President Clinton an advance look at a document that could doom his presidency.
The Clinton team argued that the report was merely unvarnished "contentions, claims and allegations" by prosecutors, as Clinton lawyer David E. Kendall put it, and that both fairness and normal due process protections demand the president's side be given an opportunity to prepare a response.
In the House, Democrats cited previous practice in their own investigations of elected officials. "There's a deep feeling in the caucus that the president deserves the rights that others have had in similar proceedings to see the material for at least some reasonable period of time before it's released to the public," said House Minority Leader Richard A. Gephardt (D-Mo.).
"To tell the President of the United States that he can find out what the charges are on the Internet seems to forget . . . the generosity" shown Speaker Newt Gingrich (R-Ga.), said Rep. John Conyers Jr. (D-Mich). Gingrich was given access to information compiled by the House ethics committee in 1997 on his fund-raising activities that allowed his lawyer to release his response the same day the 214-page committee report was made public.
Republicans countered that there was no requirement or precedent compelling them to give the president a heads-up; that he would have ample chance to put out his side; and that the overriding need finally to give the public a look at Starr's findings counseled against delaying the release.
Gingrich told CNN that review of an independent counsel's report before public release "has never been done before. It was never done during Watergate, never done in Iran-contra."
As the House Rules Committee yesterday debated procedures for releasing the report, Chairman Gerald B.H. Solomon (R-N.Y.) cited Iran-contra independent counsel Lawrence E. Walsh, who said on CNN yesterday that the White House already knows the broad contents of Starr's 445-page report and therefore could adequately respond to it.
Earlier yesterday, at a meeting with White House counsel Charles F.C. Ruff and Kendall, House Judiciary Committee Chairman Henry J. Hyde (R-Ill.) rebuffed entreaties for not only a 48-hour advance peek, but even a one-hour heads-up on the report, according to congressional sources.
Because Congress has never before grappled with an impeachment report from an independent counsel, there is no direct historical analogy for how the matter should be handled.
The independent counsel law provides for the counsel to report to Congress any findings that impeachable offenses may have occurred but does not specify any right of the official involved to respond in advance. In contrast, a separate section of the law, covering the final reports filed by independent counsels when they conclude their investigations, provides that the parties involved have the right to reply and the special court that oversees independent counsels review the document before it is publicly released.
Democrats argued yesterday that fairness required Congress to provide similar procedural protections in cases of impeachment reports as well, while Republicans noted the absence of review provisions to buttress their case that none was necessary here.
Lawyers who have both investigated and defended members of Congress accused of wrongdoing said yesterday that the targets of the inquiry were informed before the public about the nature of the allegations against them and given a chance to prepare their response.
A House ethics committeee rule requires that members acccused of violations be given 10 days to respond to the allegations against them and access to the supporting evidence. Democrats pointed to the existence of the rule as another example of normal procedural safeguards that are not being granted to the president. But Republicans said ethics proceedings against members were not relevant and that, in any case, Clinton is not yet being accused by the House of any wrongdoing.
William W. Taylor III, who represented Sen. Alan Cranston (D-Calif.) during the 1991 Keating Five inquiry by the Senate ethics committee, said the attorneys for senators in that case were briefed on the findings by the special counsel, Robert S. Bennett, now one of Clinton's lawyers, before his report was released. "The unfairness of having a one-sided presentation of these issues under these circumstances is quite apparent," Taylor said.
Richard J. Phelan, a Democratic lawyer who investigated former Speaker Jim Wright (D-Tex.) in 1989 in the proceeding that led to Wright's resignation, said the House was wrong to release the report before it considers the contents in secret. But, he said, if the report is to be made public, "it's a travesty of justice not to give the guy [Clinton] a chance to read it. Otherwise it's just a pure raw piece of information being sent out there which is obviously very biased."
In 1974, in an era before all-news cable television, the Nixon impeachment inquiry was handled largely behind closed doors. Watergate special prosecutor Leon E. Jaworski sent to the House a 60-page "road map" outlining the allegations against President Nixon, a document that to this day has not been made public. In the closed sessions that preceded the committee's public debate on the articles of impeachment, Nixon's lawyer, James St. Clair, was permitted to cross-examine witnesses before the committee and to make his own argument against impeachment.
"Everybody at that time recognized what a momentous thing it is to do to try to remove a president from office, and everybody bent over backwards to proceed cautiously and conservatively," said Bernard W. Nussbaum, who served as a lawyer on the House impeachment staff and later as Clinton's first White House counsel.
© Copyright 1998 The Washington Post Company