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For Starr, Constitution Is Lost in the Chase

By Edwin M. Yoder Jr.
Sunday, August 2, 1998; Page C01


When the president of the United States was served a subpoena demanding his personal testimony, he went ballistic.

The constitution, he complained, clearly gave him the duty of caring for the interests of millions, yet here was a legal writ that pretended to override the constitution. How could a president claim to be independent of judges "if he were subject to the demands of the latter, might be jailed if he disobeyed, and "if the courts could bandy him from pillar to post, keep him constantly trudging from north and south and east and west," distracting him entirely from his constitutional duties?

Good questions all. So an angry Thomas Jefferson in effect told his cousin John Marshall, chief justice of the United States, to take his subpoena and cram it. That was in 1807, however, and we're being told today that if William Jefferson Clinton had reacted to Kenneth Starr's subpoena for his testimony in the Monica Lewinsky matter as Thomas Jefferson did to John Marshall's, there would be hell to pay – certainly a political and press uproar and perhaps even an impeachment.

I see that the brighter kids are already waving wildly from the front-row seats. They're dying to tell me that the two situations, separated by nearly two centuries of constitutional evolution and circumstantial difference (the Marshall subpoena was for defense testimony in the treason trial of Aaron Burr, not a call to testify to a grand jury), are simply incommensurable.

They have a point – and in fact the dullest crossroads lawyer could draw perhaps dozens of distinctions between the Burr case and the Starr sex/perjury/obstruction of justice probe. Nonetheless, a few vital similarities may outweigh dozens of trivial differences.

The vital issue of a sitting president's vulnerability to ordinary legal processes (here, as in the matter of the Paula Jones civil suit, the root of the present mischief) is as important today as it was in 1807. Perhaps more so, given the centrality of the presidency in late-20th-century American government. Jefferson ignored Marshall's subpoena (though he sent documents to be used at trial and offered to be deposed), and Marshall prudently retreated.

The Burr matter pitted two mighty adversaries with strong, but sharply differing, constitutional views. Marshall was the great apostle of judicial authority in matters of law. Jefferson, to the core of his complex being, regarded judicial supremacy as the greatest of antidemocratic heresies.

Time was in our past when such foes could differ violently on such issues without either being accused of treachery to American ideals. Indeed, Jefferson's faithful lieutenant, James Madison, had begged his fellow constitution makers in Philadelphia in 1787 to establish a "council of revision," independent of any of the political branches of government, to settle constitutional disputes and avert such clashes. Their disregard of Madison's advice set the stage for Marshall's judicial coup d'etat in Marbury v. Madison in 1803, four years before the Burr trial. Marshall craftily seized upon a petty case involving a magistrate's appointment in the District of Columbia to set a crucial precedent for nullifying acts of Congress – and to assert, in words that still ring today, that "it is emphatically the duty of the judicial department to say what the law is."

Said who? Why, said the "judicial department" itself, not without a shade of self-interest. Such was the origin of the now full-grown doctrine of "judicial supremacy," as Justice Robert Jackson labeled it in a powerful polemic of the 1930s when the Supreme Court was acting as the self-anointed arbiter of national economic policy. Today, judicial supremacy – at least so far as declaring "what the law is" – has become a fixed American constitutional usage, and for everyday purposes unobjectionable. But when it comes to great structural issues between the separate and co-ordinate branches of government, it is far less akin to holy writ. Did John Marshall find it graven on stone tablets on Sinai? It ain't necessarily so.

Kenneth Starr, meanwhile, is pursuing something – anything – to punish Bill Clinton for. In this pursuit he has put at risk all sorts of valuable usages, customs and restraints – not only executive privilege but lawyer-client privilege; not only the presumption that a parent's intimate conversations with a daughter are private; not only the presumption that gentlemen do not eavesdrop on the idle sex gossip of ladies. Of late, he has attacked the presumption that Secret Service agents who guard the president's life should not serve double duty as voyeurs. And those who naively thought Starr would limit his inquiry to the uniformed Secret Service officers got a nasty shock after judges flashed a green light and he summoned the president's personal detail.

It would be consistent with this pattern of scorched-earth pursuit if, when he subpoenaed the president on July 17, Starr calculated that Clinton wouldn't dare defy his writ, constitutionally impudent though it was. Starr's gamble seems to have paid off. On Wednesday, Clinton agreed to testify by videotape to the grand jury and the subpoena is said to have been "withdrawn," whatever that means. One can only imagine the howl that would have arisen from the high-class editorial chambers and politicians if Clinton had played the Jeffersonian card and ignored it.

The tiresome chant of "no one is above the law," which passes for a big idea with the press, would have reached fortissimo volume. And in the present climate, where pettifogging legalism trumps constitutional considerations every time, Clinton's critics would probably have prevailed. A Jeffersonian response might, after all, frighten the congressional Democrats, who scurry for cover at every crack of thunder. And while it would reaffirm the separation of powers, it would probably undercut the president politically.

This prevailing timidity about fundamental structural questions is one damaging symptom of post-Watergate legalism. No one "above the law"? In fact no government can function effectively without structural immunities and anomalies. The obvious example is congressional immunity, explicitly conferred by the U.S. Constitution. That document's framers deemed the protections of Article I, Section 6 ("The senators and representatives . . . shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place") more valuable than absolute legal equality, though it often puts members of Congress "above the law" as it would govern thee and me.

Likewise, certain state and local officials enjoy special protections under the now somewhat tattered doctrine of sovereign immunity, which the courts have unwisely shrunk in recent years. Moreover, Congress constantly exempts itself from the proctorial laws it passes to enforce ethical standards in the executive branch, notably the independent counsel statute itself. If the leaders of Congress were also prey to the pestiferous plague of prosecutors and inspectors they visit on the executive branch, these laws would vanish from the books overnight. So much for the mantra that "no one is above the law" – not that Bill Clinton or anyone else claims to be. The real issue is what the law covers, not whom.

Since the onset of the Lewinsky comedy in January, we have witnessed an aggressive assault by Starr and his henchmen on the presidency, its powers and prestige, thinly tricked out as a "criminal investigation" of one sitting president – the most distracting such assault since Sen. Joe McCarthy was harrowing the bureaucratic recesses of the Truman and Eisenhower administrations for hidden Reds. And, incidentally, with the same permissiveness on the part of federal judges. And who gets the bill for the damages? Starr's cheerleaders in the press take the curious view that when Clinton avails himself of defensive weapons, he is ipso facto blamable for any shrinkage of presidential power or prestige that ensues. (As the French say: This dog is wicked indeed; when he's attacked, he defends himself.)

So far, President Clinton, who is temperamentally averse to conflict, has contented himself with legalistic fencing, quibbling and shadow-boxing. Even in the subpoena episode, made shadowy by silence, the president shrank from a searching challenge to the overweening special prosecutor culture. This may make political sense. Does it also, however, make constitutional sense?

On a strict view of the separation of powers, it is less than obvious why a judge – or derivatively, a special prosecutor – may hail a president before a grand jury. Why is this any more consistent with the separation of powers than if Bill Clinton sought to summon Chief Justice Rehnquist to the Oval Office to explain by what secretive process of reasoning his court allowed Paula Jones's frivolous civil suit to proceed?

Besides, as wiser legal heads than I have asked, what can Starr do with Clinton's testimony, except dump it (along with the pile of chicken manure he has already raked up) on the doorstep of Congress? What is the point of processing it through a grand jury? Now that Starr has granted full immunity to Lewinsky – and assuming as most scholars do that a president cannot be indicted without first being impeached – what is his point other than harassing and humiliating the president?

Bear in mind one paramount caution: I speak constitutionally, not legalistically. Any reassertion of Jeffersonian views (that in great matters each separate branch is and should be the guardian of its constitutional regularity) would have tough sledding in today's climate. But before Starr and his dragnet tactics, it was customary for high officials contesting fundamental issues of constitutional power and balance to cushion the conflict in courtesy and comity, avoiding when possible the direst kinds of friction.

That is hardly Starr's style. So what does a president do when a zealot is on the loose and seems to be getting his constitutional advice from higher than earthly sources? After all, the worst Clinton might eventually be charged with is not a violation of his oath or of public trust, let alone treason or bribery or another "high crime" or high misdemeanor; no, merely fibbing in a deposition – very possibly tainted by collusion between Starr's office and Jones's lawyers – in response to impudent questions about his private life in a now discredited and discarded civil case.

Of what, on the other hand, might historians in the perspective of years eventually accuse Kenneth Starr? That in the name of a "criminal investigation" of a petty private matter, his tactics have rivaled in recklessness those of McCarthy and Richard M. Nixon and may do more "collateral damage" than they to sound precedent, custom, comity, common sense and constitutional balance. This is what Tacitus, the Roman historian, described as "making a desert and calling it peace."

Edwin M. Yoder Jr., who was editorial page editor of the Washington Star and for 15 years a columnist for The Washington Post Writers Group, is professor of journalism and humanities at Washington & Lee University.


© Copyright 1998 The Washington Post Company

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