Starr's Wrong Turn
By Ronald S. Liebman
These were big cases. The grand jury's targets were prominent and powerful. As we investigated Agnew, President Nixon was hanging by his fingernails as new Watergate disclosures piled up. Agnew was, as they say, a heartbeat away from becoming president. Then, after Agnew made his deal, copped his plea and left office, we turned our attention to investigating allegations against Maryland's governor, the most powerful man in the state, whose fat-cat buddies did not take kindly to the prospect of having their lives ruined by a bunch of young and admittedly ambitious prosecutors.
So they fought back in any way they could. Our targets made us their targets. They accused us of leaking grand jury information and conspiring against them for motives even more disturbing than partisan politics: Some of them claimed that we were after Mandel because he was Jewish (never mind that so were two of the three lead prosecutors).
Now it's happening again. All the president's men seem to be searching for dirt on the prosecutors in Kenneth Starr's Office of Independent Counsel. Worried about Clinton's vulnerability, or convinced of his innocence, they are striking out. Starr's office stands accused of leaking grand jury information and of participating in a conspiracy to get the president. The pattern is familiar.
What isn't familiar is Starr's response making public statements, summoning his tormentors before the grand jury. It isn't familiar, or smart or appropriate. It's just plain dumb.
Starr is providing the White House with ammunition to claim with apparent justification that the independent counsel is out of control. More significantly, he is wandering far afield from the real mission of a prosecutor, which is solely to determine whether laws have been broken. If there is a case against the president, such digressions can only hinder it.
When we learned, back in the '70s, that those whom we were investigating were snooping into our private lives, I can assure you it unsettled us. Most everyone has something or other behind a figurative door that, however innocent, might look bad if made public. But we saw no purpose in responding.
We investigated the allegations before the grand jury and ignored the attempted dirt digging on us. Agnew and Mandel were both charged with corruption. Agnew pleaded no contest and resigned his office. Mandel was tried, convicted and jailed for mail fraud and racketeering. (His conviction was overturned in 1987 after the Supreme Court ruled in another case that the statute was being misapplied.)
My overall view of the Clinton investigation what we know of it is essentially neutral. I suppose there are still some people who believe that the president is not a womanizer, that he has not had what everyone else at least understands to be sexual encounters with various women. Whether he did or didn't, and whether it makes him morally fit or unfit for the presidency, is an interesting question. But it is not a legal question. It is something between the president, his wife, his god and the electorate.
On the other hand, if there is evidence that the president sought to cover up certain acts by committing perjury, or suborning others to commit perjury, or otherwise sought to obstruct justice, then Starr has a sworn duty to take appropriate action.
There are those who say and believe that Starr is politically motivated. Personally, I don't much care one way or the other so long as he does his job faithfully, following the rules that bind him.
But Starr is somewhere south of woeful naivete if he honestly expects his principal adversary and his crew to play by those same rules. The stakes are too high. If Starr loses this war, he will be embarrassed, maybe vilified in the public's mind. But he won't have his life ruined, he won't risk jail, or impeachment or a permanent place in the refuse bin of history. That is the potential fate confronting the president if Starr can make a case against him. And that is why, despite the White House rhetoric to the contrary, they are pulling out all the stops to thwart Starr.
Kenneth Starr is clearly angry. He doesn't like the fact that the other side is playing rough. The young men and women on his staff are, after all, public servants, doing their jobs, underpaid and probably grossly overworked. So he has focused the grand jury's attention and its considerable power on these attacks against him.
His point (one might argue his rationale) is that by doing what they are doing, these people, on behalf of their boss, the president, could well be obstructing the work of the grand jury and thereby committing a crime. Is that so? Could be. Should Starr divert his attention to subpoena and interrogate these people to get to the bottom of this? And in the process vindicate the "squeaky clean" young men and women who work for him?
No. Definitely no. Again, it's simply not his job.
His job is admittedly, in these circumstances, a tough one. But it is not rocket science. Plenty of prosecutors before him have shown him the way. With the might of the grand jury behind him, he has subpoena power. With that power he can command the production of documents and sworn testimony. What he must do is build a case, if he can, by focusing on the allegations before him. Did the president and his associates engage in acts intended to cause false testimony to be given? Did they take actions designed to subvert and thereby obstruct the investigations into those allegations? Diligently and methodically, with his head down, a good prosecutor pieces together what happened. Brick by brick.
Maybe the White House will get lucky. Maybe it will uncover some dirt one of the prosecutors having an affair with a twentysomething secretary in his office, or attending a party where he or she smokes some dope. Something like that. It will incinerate that evening's TV news and create oversized headlines the next morning. Starr and his team will look bad, seemingly forced to contend with all that tongue wagging, criticism and feverish speculation over behavior, motives you name it.
But this is a sideshow, which Starr should ignore. He should not use his subpoena power to require White House aides such as Sidney Blumenthal to testify about what dirt they may or may not have have given reporters. Starr should not bring in the other side's private investigators and ask them questions about what work they are doing for the other side's lawyers. It's a waste of time and bad public relations to boot.
In fact, as events have shown, Starr has damaged his chances of building a case by taking the bait, by following the wrong trails. James Carville, the president's unleashed and unmuzzled pit bull, is standing under Starr's office window, hooping and hollering, challenging Starr to call him before the grand jury, to give him his chance to testify.
What can we learn from this? More to the point, what should Starr learn from this? He's letting the other side distract him. They're luring him down false trails. In chasing collateral issues, he is chasing his own tail.
In the Agnew and Mandel cases, we abided by the rules. We stayed away from the cameras and the microphones. We did not issue public statements only criminal charges.
To do otherwise is not only indefensible in terms of proper adherence to the terms of engagement which bind prosecutors as agents of the grand jury, it's also an unhelpful tactic. The tragedy of it all is that if Starr doesn't do his job, and if the president and his pals did the things he suspects them of, they will slip away unexposed and, more importantly, uncharged. Justice will not have been done. And if the president is not guilty, that fact, too, will be forever shrouded in the twin veils of suspicion and innuendo. Clinton's name will never be cleared. Starr needs to understand that the background noise is relevant only to public opinion and his court is not the court of public opinion.
The only court that should matter to the independent counsel, after all, is the court of law.
Ronald Liebman, a partner in the law firm of Patton Boggs, is the author of the novel "Grand Jury" (Ballantine). His collection of stories by lawyers will be published next year.
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