THE IMPEACHMENT HEARINGS
Rep. Lamar Smith Questions Starr
Thursday, November 19, 1998
REP. LAMAR SMITH (R-TX): Thank you, Mr. Chairman.
Judge Starr, your friends know you to a be a dedicated husband and father and an individual of impeccable integrity. On the professional level, you have served with distinction as a U.S. Circuit Court judge, as solicitor general of the United States, and as an advisor to the Senate Ethics Committee. Those qualities of personal integrity and professional respectability haven't changed, but the rules of engagement have.
As a practicing attorney, you are accustomed to legal procedures that put you on an equal footing with the other side, but as independent counsel, you were prohibited from commenting publicly on the details of the case, even as you were unfairly savaged on a daily basis. So I understand why you welcome the opportunity today to testify and to respond to your -- our questions, as you have done so well.
Judge Starr, during your investigation, the president claimed executive privilege to withhold information from you and prevent witnesses from testifying. While those claims were ultimately overruled by the courts, they did cause long-term delays and, in fact, as you said, obstructed your investigation.
Executive privilege only allows the president to protect national security secrets. It cannot be used to interfere with a criminal investigation. Since President Clinton and his lawyers knew the law, they also knew that their claims of executive privilege were not legal. President Clinton's claims were thrown out by the courts, but not before they delayed your investigation by many months and perhaps over a year. Meanwhile, the White House complained that your investigation was taking too long.
In short, the president took executive privilege, which is supposed to safeguard our country's national security, and misused it to obstruct the investigation. As you said in your opening statement, this is arguably an abuse of power.
Judge Starr, my first question is this: in your referral, you said that the president had a pattern of invoking and then withdrawing executive privilege to delay your investigation. Could you give us examples of this?
MR. STARR: Yes. The president would, in fact, through his attorneys, invoke executive privilege with respect to one or more witnesses and when we would take the issue to litigation -- I will be very specific -- the president invoked or the witness, I should say, but had to do it at the direction of the president, namely Nancy Hernreich. Nancy Hernreich does not carry on, and by her own admission, a policy role at the White House. She does have an important function at the White House; she manages the Oval Office operations. It's a very important function, but that is not the kind of function that the principle of executive privilege was meant to protect. When we then, shall I say, "called" the lawyers on that, then it was withdrawn.
That has happened to us before; it happened to us in the Arkansas phase of the litigation, as well. Moreover, as we point out, the president told the grand jury on August 17th that he had no interest in this, save and -- I'm roughly paraphrasing here -- having the matter litigated. So it was as if it was to preserve the presidency and presidential prerogative.
The history, when one then analyzes the facts, does not support that conclusion.
REP. L. SMITH: Okay, thank you, Judge Starr. And another question. President Clinton told the American people several times that he supported the public release of the court documents he used to claim executive privilege. Is that accurate?
MR. STARR: The answer is partially -- I would want to review the facts because I want to be fair. But there was in fact not, shall I say, a ready willingness to allow, for example, public access to the executive privilege hearings, and so forth. So I don't want to be condemnatory, but I would say that the president did not show a strong interest in having this released quickly.
REP. L. SMITH: Judge Starr, a few minutes ago, counsel for the committee read an excerpt from a book written by Leon Jaworski. Let me read some other words that Leon Jaworski wrote in a book called, "The Right and the Power," which was about his experience as a special prosecutor during the Nixon impeachment proceedings.
Quote, "No government office, not even the highest office in the land, carries with it the right to ignore the law's command any more than the orders of a superior can be used by government officers to justify illegal behavior. There was evidence that the president conspired with others to violate 18 United States Code, page 1623, perjury, which included the president's direct and personal efforts to encourage and facilitate the giving of misleading and false testimony by aides. For the number-one law enforcement officer of the country, it was, in my opinion, as demeaning an act as could be imagined." End quote.
Do you think that passage from Leon Jaworski's book has application to the case at hand?
MR. STARR: I do. My own view is Colonel Jaworski, were he here, would say: It is your judgment, but these matters are serious and clearly deserve to be analyzed in terms of the importance to our system of truthfulness and taking the oath of office seriously and the oath of a witness seriously. And yes, I do think that Mr. Jaworski, were he alive today, would say: If lying to the American people is grounds for impeachment -- as he thought it was, I believe -- he would saying lying under oath is as well. But again, it's your judgment.
REP. L. SMITH: Thank you, Judge Starr.
Thank you, Mr. Chairman.
REP. HYDE: The gentleman's time has expired.
The gentleman from Virginia, Mr. Boucher.
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