Prosecution and Persecution
Washington Post Staff Writer
Monday, January 18, 1999; Page C1
The former U.S. attorney, a man charged with prosecuting a president, stands in the well of the Senate and speaks to the yawning divide between prosecutorial imperative and popular will.
"If the chief executive officer of our nation used his power and his influence to corruptly destroy . . . there must be constitutional accountability," Rep. James Rogan (R-Calif.) advises a silent Senate. "Our founders bequeathed to us a nation of laws not of polls, not of focus groups and not of talk show habitues."
But as four House members, each of them a former U.S. attorney, lay out their case, a deep divide is evident: between Washington's prosecutorial culture, which has seen a steady expansion of its power these past two decades, and the many Americans who balk at the intrusion into the private, and view this impeachment as sulfurous excess.
It's a conflict rooted in American history, this romantic tension between sheriff and bandit, between a Washington prosecutor measuring out right and wrong inch by legal inch, and a sybaritic Bubba who would be left alone with his sins.
And it plays out on endless rewind these days, the prosecutorial hound dogs sniffing after the carnal and the illicit. Former HUD secretary Henry Cisneros acknowledges he's paid a mistress but understates the time and the amount. Hit him with a felony count! (His mistress is already sitting in a Texas jail.)
Julie Hiatt Steele recants an account of the president groping a former friend? Indict her! Susan McDougal won't rat out Clinton? Lock her up for 18 months! Former agriculture secretary Mike Espy acquitted? Independent counsel Donald Smaltz offers a dismissive bottom line: "The actual indictment of a public official may in fact be as great a deterrent as a conviction of that official."
And that's just the turning of the wheel; the Reagan and Bush administrations offered up their hapless servants as well.
So one hears Americans ask: Is the caddish really criminal? What of this young woman who shaded the truth, this man who incompletely fished his memory? Are they really felons? Starr as Torquemada seems to excite more popular anger: He put McDougal in leg shackles, denied Monica her lawyer, made Monica's mother scream no mas before the grand jury and watched her dissolve in tears.
"Republicans and Democrats often get things wrong, and they underestimate the extent to which Americans, historically, really do value privacy," says Leo Ribuffo, a historian of American culture at George Washington University. "They don't want it undermined for what they perceive of as white-collar crime."
That said, Americans might cop a plea to a measure of confusion in matters of law and order. The generation now come to political power has expanded as no other the perimeter of the acceptable, from sex and drugs to hotblooded capitalist accumulation. It celebrated the individual and made a secular religion of Do-Your-Own-Thing.
Yet, as cocaine and heroin use mushroomed in the 1970s and '80s, and gang shootings took violent blossom, and commercial sex and pornography became woven into society's very lineament, the same generation began to shout: Enough! More order! So for two decades legislators and the courts add muscle to prosecutorial writ, enacting a blur of three-strikes-you're-out, property-forfeiting, due-process-limiting, terrorist-deporting legislation.
A sizable expanse of behavior is criminalized. The Constitution names three federal felonies; there are now 3,000 on the books. It's in this soil that the independent-counsel legislation took root.
And so long as prosecutors practiced their tough new law on Mafiosi and Colombian drug dealers and the occasional money-intoxicated predatory capitalist, few paid much heed. The generational dissonance simply went unresolved.
"The war on drugs and war on crime have driven public policy for 20 years," says Jamin Raskin, a law professor at American University. "And it's set the stage for the current hysteria about public officials."
So Starr's tough-guy tactics might be seen as now-commonplace arrows in the prosecutorial quiver. The erosion of the rights of the accused, the ability of prosecutors to threaten a defendant with a harsh sentence to gain cooperation, the loss of broad judicial control over grand juries: None is an instrument of Starr's invention.
"C'mon. It didn't begin with Kenneth Starr." Danny Greenberg, executive director of the Legal Aid Society of New York, the largest public defender in the nation, finds the notion almost laughable.
"There's nothing shocking about pitting a mother against a father; that's commonplace," Greenberg says. "The charge that Bill Clinton abused power by defending himself, that he should have been complicitous in helping prosecutors get him, is embodied in law.
"In a climate where Congress is intent on criminalizing more and more behavior, it's really not surprising to see these tactics used on a president."
It might be comforting, in their dark hour, for Democrats to ladle blame on the Republicans, to portray them as the law-and-order zealots. But the expansion of prosecutorial powers, by most accounts, was a bipartisan feast.
And no Democrat of recent vintage ate a heartier meal than the president. A centrist, a man of the South, Clinton is the president who is leading his party out of the depths of its liberal captivity. He champions the death penalty, expands the wiretap law and cuts the amount of time during which federal courts can review the fairness of state death penalty trials.
"Every day in this country, the tactics that Mr. Starr used are legitimately wielded by the U.S. attorney and supported by Clinton's Justice Department," says Joseph diGenova, a Republican former U.S. attorney in the District. "And that includes bringing charges against families and friends and expanding wiretaps."
As the New Yorker magazine has pointed out, Clinton even lobbies to retain the legal instrument of his own comeuppance. Attorney General Janet Reno has called around Capitol Hill, trying to kill a bill that would force federal prosecutors to abide by state ethics guidelines that prohibit interrogating a suspect who has retained lawyers.
Think of Monica Lewinsky, hanging out lawyerless at the Ritz Carlton with Starr's boys.
"Clinton's administration has supervised a vast expansion of prosecutorial power that now has met him at his doorstep," says Raskin.
Clinton is not the first president to trip into the chasm between anti-crime word and deed. Richard Nixon spun the term: Law and Order Presidency. And prosecutors tracked down and jailed his attorney general, John Mitchell, by using conspiracy laws that Nixon crafted to ensnare anti-war radicals.
There is another curiosity, a final turn of the political screw. It's diGen ova, the conservative Republican, who joins those like liberal Rep. John Conyers of Michigan in arguing now for caution, saying Congress has given too much power and discretion to U.S. attorneys. It's another Republican, the president's hulking nemesis, Judiciary Chairman Henry Hyde, who's fought to soften forfeiture laws so that families and friends need not lose all when a relative is convicted of a crime.
And a third Republican, a man of considerable partisan blood lust, Rep. Bob Barr of Georgia, is an oft-fierce champion of civil liberties.
"There is a fascinating display of outrage now coming from people who favored some of these same laws," diGenova says. "After the trial, the president's dilemma should cause a very healthy debate about whether these greatly expanded prosecutorial powers are in the best interests of the country."
That seems a good bet, at least as the prosecutorial hunt applies to politicians; a rummage through the political closets in Washington finds few champions of the independent-counsel law.
But for now, for this president, Washington's prosecutorial culture grinds on. Republicans believe they have the advantage of knowing how much of Clinton's fabric is woven of lies. And they see a puzzle easily solved. Prove the legal insult; convict and turn out the offender.
If a decided majority of Americans seem little taken with their case, and to have even less taste for watching Republican prosecutors construct their televised gibbets and scaffolds, well, that's their problem.
"He has turned his affair into a public wrong," says Rep. F. James Sensenbrenner of Wisconsin, the only one of the House prosecutors who had not tilled prosecutorial fields before coming to Congress. "And for those actions, he must be held accountable."
It's a matter of the law, after all.
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