The Prosecutor's Efforts: Stifled or Unproductive?
By Ruth Marcus and Peter Baker
To supporters of independent counsel Kenneth W. Starr, those events -- which are all occurring in the same week through an accident of timing -- underscore the central theme running through his nearly four-year investigation of the Clintons: that the president and his allies have engaged in a concerted effort to secure the silence of key witnesses against him.
"They all lead back to various obstructions of justice in all of these cases," said Peter Wallison, who served as White House counsel under President Ronald Reagan. Putting them together in one package, like a report to Congress or the court, "would go a long way toward validating" the Starr probe, he said. "It would make it clear to people . . . why he has ventured into all of these areas and why it has taken this long to develop his case."
To the president's defenders, however, the latest developments illustrate the unrelenting zeal with which Starr has pursued Clinton and his friends -- and how little they say he has to show for it. They point out that Hubbell, McDougal and Lewinsky -- through her lawyer -- have all accused Starr of using coercion to get them to lie about the president.
Former White House special counsel Lanny J. Davis called the Hubbell indictment an "act of vengefulness" from a "desperate prosecutor who can't make a case on Whitewater." He said Starr's actions should result in "review by the Justice Department with possible removal because of his conduct."
After years of scouring the activities of the Clintons and their friends in Arkansas, Starr appears on the verge of wrapping up that aspect of his investigation. Next week, the Little Rock grand jury that has been probing the Whitewater real estate development is set to expire -- possibly with a parting blast at McDougal, who has already served 18 months for civil contempt for refusing to answer Starr's questions on the subject and now faces the prospect of a criminal prosecution for the same conduct. A number of criminal law experts said that would be legal but excessive. "It really would be piling on," said former prosecutor Bruce Yannett.
During his investigation in Arkansas, Starr secured the conviction of the sitting governor of Arkansas, Jim Guy Tucker, on charges of bank fraud. He proved that Hubbell stole money from his clients and law partners by submitting false billings and expense accounts. He won the conviction of the Clintons' Whitewater business partners, James B. and Susan McDougal, on fraud charges arising from their involvement in Madison Guaranty Savings and Loan, the failed thrift for which first lady Hillary Rodham Clinton did legal work.
While Starr could seek to have yet another grand jury impaneled in Little Rock, it is more likely that his investigation there is concluded without further indictments, including prosecuting Hillary Clinton, and that Starr will unveil the evidence he has gathered in a report to Congress.
"In looking back over the Arkansas phase, it's important to recognize that none of the indictments, none of the convictions, have had anything whatsoever to do with the president or Mrs. Clinton," said Jane Sherburne, former White House special counsel in charge of Whitewater. "So we've had four years of Ken Starr and his army of FBI agents and prosecutors crawling all over Arkansas, and they have basically nothing to show for it that relates to the reason for appointing an independent counsel in the first place."
Robert J. Giuffra Jr., who served as counsel to the Senate committee investigating Whitewater, said Starr's Arkansas performance should not be criticized. "To take the position that this proves the whole thing was a dry hole is really preposterous," he said. "Ken Starr is in a position where he's damned if he does and damned if he doesn't. If he makes the judgment, which in my view is a reasonable one, that there isn't enough evidence to put the country through a trial of the first lady of the United States, he's attacked because the whole thing was a waste of time. On the other hand, if he had brought the indictment he would be called the most venal prosecutor in the history of mankind."
In Washington, meanwhile, Starr may finally be gaining steam in an investigation that has yet to hear from any of the main protagonists: Clinton; Lewinsky, the former White House intern; and Linda R. Tripp, the colleague who tape-recorded Lewinsky's descriptions of an affair with Clinton and her efforts to cover it up.
In a decision revealed only Wednesday, U.S. District Judge Norma Holloway Johnson rejected Lewinsky's assertion that Starr had promised her complete immunity from prosecution. That leaves Starr in essence with the choice he has faced all along: to prosecute Lewinsky for perjury and obstruction of justice or to call her before the grand jury, give her limited immunity from prosecution if she asserts her constitutional right against self-incrimination and hear her testimony about her dealings with Clinton and others.
The limited protection would prevent Starr from using Lewinsky's grand jury testimony, or any leads derived from it, as the basis for prosecuting her. But a number of legal experts said there is little practical difference between the limited immunity that Starr could choose to give Lewinsky and the complete immunity she asserts he promised her. In practice, they said, it is very difficult to prosecute someone once she has been given even limited immunity.
Sherburne said she thought Starr was simply delaying in resolving the case because Republicans in Congress do not want to have to deal with a report from the independent counsel before the November election.
"I don't think Starr has had much interest in moving this along quickly enough to get it before the public or the Congress in time to require a response from the Congress before the midterm election," Sherburne said. "He was hiding behind Judge Johnson's failure to rule on some of these pending motions as an excuse for not proceeding, which I think is pretty weak. Now he can decide what he wants to do with Lewinsky and proceed. What's to stop him?"
Lewinsky's lawyer, William H. Ginsburg, has said he will appeal Johnson's ruling, but legal experts said yesterday that they are not clear on whether he will be able to do that at this stage. In any event, they said, it is unlikely he would be able to win a stay while the ruling is on appeal. That would mean that Lewinsky could be required to testify and the court could later sort out whether she is open to any prosecution.
"I don't think anyone's going to agree that the grand jury's going to have to stop its work while an appeal is being considered," said Fordham University law professor Bruce Green. "Starr can do what he wants."
Columbia University law professor Gerard Lynch said Lewinsky's effort to have the court enforce the supposed immunity agreement "was all just sideshow as far as I can see. . . . The basic structure of the situation remains what it's been from the start, which is they can give her statutory immunity and compel her to testify. If they're not willing to do that because they don't believe it or don't think it's useful, then their choice is to prosecute her or not. . . . This just kind of put off the day of reckoning for the decision Starr should have made a long time ago."
© Copyright 1998 The Washington Post Company