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Analysis: Indictment Appears More Unlikely

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  • By Ruth Marcus and Susan Schmidt
    Washington Post Staff Writers
    Friday, February 12, 1999; Page A1

    With the Senate poised to acquit President Clinton today on charges that he committed perjury and obstructed justice, attention will shift once again to independent counsel Kenneth W. Starr and two looming questions: Does he plan to seek Clinton's indictment and, if so, when?

    Whether Starr will ever prosecute Clinton is the great unknown -- and something that Starr, in his appearance before the House Judiciary Committee last November, suggested would not be finally decided until the end of the congressional impeachment process.

    But it appears increasingly unlikely that Starr would take the unprecedented and highly controversial step of indicting Clinton during the 23 months remaining in the president's term, if he were to charge him at all.

    Several factors suggest it is far more likely Starr would wait until after Clinton leaves office: the length of time it would take to litigate the constitutional question of whether he has the authority to pursue a sitting president; the absence of any need for immediate action; and a string of departures of top aides, suggesting that the office is not gearing up for a major new assault.

    Although Starr believes the Constitution permits him to take such a dramatic action, the issue has never been presented to the courts and the inevitable litigation arising from a presidential indictment would most likely eat up the bulk of Clinton's term in any case.

    Starr has not shied from controversy during his more than four years on the job, but there would seem to be little to gain for him in creating such a constitutional uproar. At the same time, there would appear to be little for him to lose by waiting. The five-year statute of limitations will not expire until 2003, meaning there is no urgent deadline for him to act.

    "If you're looking at it not from the vantage point of throwing a political hand grenade into the process but from the standpoint of how can I most effectively bring my charge . . . why on Earth would you want to bring a charge where there's a pretty plausible argument that you can't bring it?" said Columbia University law professor Gerard Lynch.

    "You're inviting a whole storm that will probably keep you from getting the case tried until Clinton's out of office anyway, when nobody denies that you could skip all of that by bringing the charge on Jan. 21, 2001," he said. "Why not wait?"

    St. John's University law professor John Q. Barrett said that indicting a sitting president is "such an enormous decision . . . you'd need such extraordinary factual evidence and such a pressing need to do it sooner rather than later."

    In this situation, he said, "you're not up against the statute of limitations, you're not looking at ongoing activity that can't be stopped but by prosecuting. Assuming power to prosecute, there are so many serious factors that any prosecutor would view it as a very, very tough trigger to pull."

    The recent and planned departures of some of Starr's senior aides also lend weight to the idea that there is no plan in place to pounce on the president once the impeachment trial is over.

    Although one Starr ally derided such analysis as "Kremlinology," several of his key aides, including appellate expert Brett Kavanaugh and Robert J. Bittman, who handled the Monica S. Lewinsky investigation, are leaving. Deputy Jackie M. Bennett and prosecutor Solomon L. Wisenberg, both key lawyers in the Lewinsky investigation, are said to be hunting for jobs, suggesting that they do not expect the office to be embroiled in the first-ever prosecution of a president any time soon.

    Washington lawyer Theodore B. Olson, a close friend of Starr's, said he has not discussed the question with Starr but expressed doubts that Starr would seek to indict Clinton while he is in office.

    "He is a cautious person," Olson said. "However he may have been characterized by the James Carvilles of the world, I think he would not take that step lightly during the president's tenure or even afterwards. I can't see him rushing into doing something like this, but what he has in mind, I have no idea."

    Friends also think that Starr himself is anxious to leave the office. In 1997, he canceled his plan to assume the deanship at Pepperdine University law school after an uproar over whether he was bailing out on the Whitewater investigation at a critical time. And last summer, as the Lewinsky inquiry heated up, he took a leave from his million-dollar-a-year partnership at Kirkland & Ellis "until I complete my public duties."

    Starr told Congress in his referral five months ago that he believed there was "substantial and credible information" that Clinton lied under oath, both before the grand jury and in his deposition in the Paula Jones civil lawsuit, and that he obstructed justice in trying to cover up his affair with Lewinsky.

    Starr suggested to the House Judiciary Committee in November that he had not reached a conclusion on the tougher question of whether the evidence against Clinton was enough that a "fair-minded jury would convict based on these facts, with the witnesses . . . as we find them, beyond a reasonable doubt."

    Although the Senate operates in a different environment than a criminal jury, the fate of the impeachment articles in the Senate might give Starr some pause. "That tells you something, if you can't even count on the Republicans," Lynch said.

    But others believe that the statements Starr has made about the gravity of Clinton's actions suggest he will move forward with an indictment at some point. After the Senate's vote to acquit, said William & Mary law professor Michael J. Gerhardt, "There will be a sense among many in that office that they'll want to see justice done and justice in their view requires indicting the president."

    The term of the Lewinsky grand jury expires next month, but Starr, if he wanted to wait until after Clinton's presidency, could simply present the evidence to another grand jury. There is also the possibility that Starr could seek an indictment of Clinton under seal -- or that he has already done so -- but that could conflict with Clinton's right to a speedy trial and would confer no obvious strategic advantage.

    Starr's office will not close down right away even if it does not go for a presidential indictment. It has four criminal trials pending and the office must finish writing a report for the court on issues it has been charged with investigating: the Whitewater land development, the White House travel office and the FBI files controversy.

    At the same time, the office finds itself facing a possible full-scale Justice Department investigation into alleged misconduct by Starr's prosecutors. Yesterday, Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah) fired back at Justice, saying that the timing of news reports about the probe during the Senate deliberations "could not be more suspicious."

    Starr's lawyers are still at work on various matters relating to the Lewinsky investigation. They are looking into whether there were efforts to influence or intimidate former White House volunteer Kathleen E. Willey when she, like Lewinsky, was sought as a witness in Paula Jones's sexual harassment suit against Clinton.

    Starr has charged Willey's former friend, Julie Hiatt Steele, with making false statements to grand juries in Washington and Alexandria that cast doubt on Willey's claims, disputed by Clinton, that he made a sexual advance at her. Steele also is charged with obstructing justice by trying to influence the testimony of others. Steele, who faces trial March 30 in Alexandria, has denied the charges and is seeking to have the case moved to the District.

    On another Lewinsky-related front, Starr's office is continuing to look into who may have duplicated or doctored tape recordings of Lewinsky that Linda R. Tripp provided to his office. The FBI discovered irregularities on the tapes last summer. Tripp has denied making alterations, and Starr has been questioning others who had access to them before they were turned over to his office, including former Tripp lawyers and associates.

    The most immediate task Starr's office faces is Susan McDougal's March 8 criminal contempt trial in Little Rock. McDougal is charged with refusing to answer a grand jury's questions about whether Clinton lied under oath in testimony he gave at her 1996 bank fraud trial about Whitewater and other financial dealings.

    McDougal, a former business partner of the Clintons in the Whitewater real estate investment, was jailed for 18 months by a federal judge who found her in civil contempt for refusing to testify about Clinton. The criminal contempt charge could bring a 10-year term.

    In addition, Webster L. Hubbell, the former number three Justice Department official and a close Clinton friend, faces two major criminal trials this year, one on tax fraud charges, the other for allegedly lying to Congress and federal regulators about legal work he and Hillary Rodham Clinton did for the McDougals' Little Rock savings and loan in the 1980s.

    The latter trial is set for June. Hubbell is accused of covering up the Rose Law Firm's involvement in a phony multimillion-dollar land deal that caused losses contributing to the failure of Madison Guaranty Savings and Loan.

    Hillary Clinton's legal work for Madison in the mid-1980s is certain to be an issue in the trial. Her work is described throughout the indictment, although she is not accused of wrongdoing and is not mentioned by name. Hubbell has accused Starr of bringing the case in an effort to pressure him to testify falsely about the Clintons.

    Starr will not complete the Whitewater report, to be produced for the three-judge appeals court panel that named him, until after the McDougal and Hubbell trials.

    Staff researcher Ben White contributed to this report.


    © Copyright 1999 The Washington Post Company

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