Like many adults, I'm dreading the inevitable moment when my kids ask me to explain the Starr report to them. Not because of the sex--the "kids" I'm worried about are my first-year students at Yale Law School, and I assume they know about sex. What they don't (yet) know, and are endlessly curious about, is how the Constitution works, or at least how it was designed to work. If they look to the report for constitutional theory, they may get perverse ideas.
"Professor," I can hear them saying, "you said that the Constitution carefully separates the three branches of government. So how can judicial branch officers pick an independent counsel who wields executive branch powers yet reports to the legislative branch? If the Framers scrupulously excluded ordinary judges from the impeachment process, why were three judges allowed to pick the man who now acts as Congress's designated impeachment adviser? If federal prosecutors are constitutionally confined to punishing violations of federal criminal statutes, then why does this prosecutor's report contain all sorts of material ranging beyond statute-book offenses--charges of lying to the American people and the cabinet, for example?"
I have no good answers. For the truth is that the statute that created the independent counsel--vesting his appointment in judges, arming him with awesome inquisitorial powers and instructing him to hand over all his findings to Congress--cannot be squared with the Constitution designed by the Founders. If this fact wasn't clear to all before the report, it should be clear now.
For the unconstitutional mess we find ourselves in I blame not Kenneth Starr but the statute (first signed into law in 1978 and reauthorized by President Clinton in 1994). Indeed, I have been a critic of this law and its predecessors for a good decade. Starr is just doing what the law allows and indeed tells him to do. He didn't seek out this dirty job--he was chosen, and simply answered when his country called.
But how was he picked, and by whom? Behind closed doors, by three judges. This is bad business. In our constitutional tradition, judges typically act after open argument in open court. By contrast, the independent counsel statute permits ordinarily taboo ex parte (secret) communications under the following logic. Because the statute tells judges not to decide a legal case but to answer an inherently political and policy question--who should investigate the administration?--then judges are acting politically rather than judicially, consulting senators or anyone else they choose, in whatever manner they choose, as they decide who is best for the job.
But this logic only raises the question of why Congress would give judges such a political and potentially partisan task--especially when the investigation is of the president himself. The Constitution says that the House shall prosecute impeachments and the Senate shall try them. This system insulates senators from the prosecution business, so that they may be impartial triers of law and fact. But under the statute, various senators may end up sitting in judgment on a report from a prosecutor they helped pick in secret conversations with lower court judges (who are supposed to have no role whatsoever in impeachment). Whether any senators in fact helped pick Starr is less important than the fact that the statute allowed them to do so.
The Constitution also says that when a president is impeached, the chief justice shall preside over his trial in the Senate. The idea here was to have a presiding officer utterly free from even the appearance of conflict of interest. (Ordinarily, the presiding officer of the Senate is the vice president, and it would be unseemly for him to preside over a trial that could vault him into the presidency.) But Chief Justice William Rehnquist is the very man who handpicked the three judges who handpicked Starr. The independent counsel statute says that the three judges who pick a special prosecutor should never preside over trials initiated by that prosecutor--lest defendants and the public think that the fix is in, and that the judges will be tempted to make their choice look good. But now, if a trial in the Senate were to materialize, the chief justice can be seen to be linked to one side. If Starr isn't quite the chief's man, he is the man picked by the chief's men.
Consider next a more literal violation of the Constitution made visible by the Starr report. Why in the world are judges ever allowed to pick prosecutors? Judges are members of the judicial branch, and prosecutors wield executive power, which our Constitution vests in the president, not the judiciary. (Remember that, preceding the independent counsel statute, Watergate special prosecutors Archibald Cox and Leon Jaworski were technically appointed by the White House.) Having judges pick prosecutors is as inapt as having them pick generals or diplomats. The Constitution does say that the law may vest judges with unilateral power to pick "inferior" officers, but the obvious idea here is inferior judicial officers--magistrates and special masters. However, the Supreme Court rejected this logic a decade ago, in the Morrison v. Olson decision upholding an early version of the independent counsel statute. Last year, in the obscure case of Edmond v. United States, the court seemed to repudiate its Morrison analysis by insisting that every "inferior" officer must have a clear "superior" with broad power to monitor and countermand his decisions. Under this test, Starr could not be called "inferior" because Janet Reno lacks broad power to control him--but it is unclear whether the court would now be willing to use Edmond to openly overrule Morrison and apply its new test to Starr.
Where ordinary special prosecutors are involved, perhaps we could say that they are in some sense "inferior." These prosecutors are targeting officials other than the president, and if the president dislikes what a prosecutor is doing, he may always pardon the targets--even before indictment--and in effect make the prosecutor go away. (This is what President Bush did to Iran-contra independent counsel Lawrence Walsh by pardoning Walsh's target, Caspar Weinberger.) Through the pardon, the president maintains ultimate control over prosecutions, and can, at least arguably, keep special prosecutors in line as his "inferiors."
But when the president is himself the target of the special prosecutor--as was not the case in Morrison--he cannot in any conceivable way control the prosecutor because he cannot constitutionally pardon himself. Nor can he exempt himself from the impeachment process.
Thus, when Starr issues a report calling for the president's impeachment, he is clearly acting not as some inferior officer who can be countermanded by the chief executive. Rather, he is acting as one of the largest legal and political actors on our national stage. If we are to create this powerful a figure, the Constitution requires that such a grand officer be appointed by the president and confirmed by the Senate, receiving a personal vote of confidence from both political branches.
It's tempting to respond that Starr's report has no automatic legal significance--it's as if any private citizen "reported" to Congress and called for the president's impeachment. But this is laughable in fact and unsupportable in law. No private citizen is given the government funds and government power that Starr has been given. No private citizen is directed by law to give Congress impeachment reports.
There is a dangerous dance here. Starr does the dirty work and hands his report to Congress, which then publicizes it and even releases evidence gathered under grand jury secrecy. But neither takes full responsibility for its joint product. If Americans think Starr pushed too hard or was unfair, Congress can say "Blame him not us--it's his investigation and his report." And if Americans think that the report--and the videotape due out soon--should not have been publicized in the way it was, Starr can say "Blame Congress, not me." The proper lines of constitutional accountability are being blurred.
So are the lines between criminal law and high politics. Impeachment is not a technical issue of statute-book offenses--otherwise, it would have been given to judges, not politicians. The question of "high crimes and misdemeanors" is whether a president has engaged in such grave misconduct (whether or not technically criminal) that he is no longer fit to lead a great and free nation--whether, in other words, the votes of millions should be undone because of his gross misbehavior. Lying to the American people might well be more serious than lying in a civil deposition, even though the former is not a statute-book crime at all. And so Starr's inclusion of non-criminal matter is fitting in an impeachment report--but unfitting given that Starr is otherwise supposed to be a prosecutor, not an impeachment adviser. Ordinary prosecutors who uncover gross misbehavior that does not constitute a statute-book offense keep this to themselves. The proceedings of ordinary grand juries are secret. Ordinary prosecutors report to the Justice Department, not Congress. The report is a kind of hybrid monster--half-indictment, half-impeachment--the likes of which America has never seen.
Now that this beast roams among us, what are we to do? There is, alas, no easy way for Congress to cage what it has unleashed. After the havoc, Congress can say "never again!" by allowing the independent counsel statute to die when it lapses by its own terms next year. But I am afraid we are in for dark and unpredictable days ahead, in which the only advice I could offer Congress would be to approach every issue in the most bipartisan manner possible. But that has not happened thus far, and is unlikely to happen in an election year.
And what shall I tell my students when they ask me to make constitutional sense of this report? It will be painful to tell them that a statute they were told was such a wonderful post-Watergate reform is, in fact, a constitutional abomination. Akhil Reed Amar is Southmayd Professor at Yale Law School and the author of "The Bill of Rights: Creation and Reconstruction" (Yale University Press).