November 4, 1998

Starr's Slips, Bloopers

Because I'm writing four days before the elections, and you're probably reading after the results are in, I'm going to ignore that sorry billion- dollar spectacle. Yep, that's how much was spent on all the races. Do you think the citizenry got it's money worth? Then again, the major share of that money didn't come from commoners; it was fuel-injected into the political system by corporate donors and the well-to-do, most of whom have very specific political desires. No doubt, many of them find this investment a sound one. As the campaign of 1998 was ending, political analysts were expecting it to set records for more money and fewer voters -- sounds like good news for those who aim to influence politics with bucks not bodies.

Let's move on to a fellow who's done more to affect this year's politics than any contributor: Kenneth Starr. Pay attention. First I'm going to whack Starr. Then I'm going to come to his defense.

The day the House of Representatives voted to begin an impeachment inquiry, Senator Carl Levin, a liberal Democrat from Michigan, went to the Senate floor and delivered a scorching and little-noticed critique of the independent counsel. Levin's remarks were drowned out by the noise emanating from the chamber next door. Admittedly, Levin is a partisan player, but his pokes at Starr and Starr's reports were important ones.

Levin asserted that Starr had traveled beyond the bounds of the independent counsel law by arguing for impeachment in his referral to Congress. As Levin pointed out, the independent counsel law says that such a prosecutor shall forward to the House of Representatives "credible information...that may constitute grounds for impeachment." Yet throughout the Starr report, Levin maintained, Starr presented conclusions and contentions, in one instance noting that "the President's denials -- semantic and factual -- do not withstand scrutiny." But, Levin said, "the law doesn't give an independent counsel the responsibility to argue for impeachment....The independent counsel law doesn't give the independent counsel the responsibility to draw conclusions from the information he presents to Congress."

Maybe Starr was merely doing extra-credit work. His other excesses detailed by Levin are more disturbing. The Senator decried Starr for disregarding the restrictions placed on his powers. For instance, before Starr won the right to expand his inquiry into Monica territory, he discussed immunity with Linda Tripp and arranged for Tripp to wear a wire when she met with Lewinsky. He took these steps when he had no jurisdiction in this area. "He thereby ignored," Levin said, "the statutory limitations on his authority -- the limits that confined him to matters involving Whitewater and investigations into the White House use of FBI files and the White House Travel Office....In doing so, he used some of the most powerful tools given to a prosecutor -- immunity from criminal prosecution and electronic surveillance by the FBI -- to expand his reach beyond what the law permitted him to do."

All citizens should worry about prosecutors who stray. But if that doesn't ruffle your feathers, then how do you feel about prosecutors who lie?

The most useful -- and harrowing -- portion of Levin's speech pertains to how Starr first confronted Lewinsky. In a clever move, Levin compared a June 16 letter that Starr sent journalist Steven Brill to the grand jury testimony released as part of Starr's referral to Congress. In the letter, Starr served up his side of what happened on the afternoon of January 16:

"Ms. Lewinsky was asked to cooperate with the investigation. She telephoned her mother, Marcia Lewis, who took a train from New York City to confer with her daughter. During the five hours while awaiting her mother's arrival, Ms. Lewinskky drank juice and coffee, ate dinner at a restaurant, strolled around the Pentagon CIty mall, and watched television. She was repeatedly informed that she was free to leave, and she did leave several times to make calls from pay telephones. After her mother arrived, discussions resumed with agents and attorneys. Ms. Lewinsky, after talking with another family member by phone, chose to retain William Ginsburg....As they left the Ritz Carlton, both Ms. Lewinsky and Ms. Lewis thanked the FBI agents and attorneys for their courtesy. Recent media statements by one of her attorneys alleging she was mistreated are wholly erroneous."

Sounds as if Lewinsky's time with Starr's band of agents and lawyers was like a trip to Pleasantville.

According to Starr's star witness -- Lewinsky -- that's not what happened. She told the grand jury a completely different tale. She noted that when the FBI agents dispatched by Starr had approached her at the Ritz Carlton, the first thing she said was that she wouldn't talk without her lawyer presennt. The G- men, according to Lewinsky, said, "I should know I won't be given as much information and won't be able to help myself as much with my attorney being there." (Apparently, they had watched too much Homicide.) Lewinsky went with the FBI agents to a hotel room. She again said she wanted to speak to her attorney. They informed her she was under investigation for her actions in the Paula Jones case and that they had a taped conversation of a recent chat between her and Tripp. They then said she would have to agree to be debriefed and covertly record calls or conversations with Betty Currie, the president's secretary, Vernon Jordan, and, Lewinsky testified, "possibly the President."

The agents kept telling her she couldn't contact her attorney because news of their investigation would leak out. When she said she wanted to call her mother, Lewinsky maintained, Starr deputy Jackie Bennett Jr. snorted, "You're 24, you're smart, you're old enough, you don't need to call your mommy." Lewinsky told the grand jury that she was under the impression that she would be arrested if she attempted to leave and that Starr's people had said that if she phoned her attorney she would not be offered an immunity deal. A grand juror asked, "Did you feel threated by that." She replied, "Yes."

On the Senate floor, Levin explained that Justice Department policy "explicitly prohibits federal prosecutors from offering an immunity deal to a target without the consent of the target's legal counsel....Indeed [Starr's] office made immunity contingent upon her not contacting her counsel." In Lewinsky's account, Starr's minions ignored this policy, and they bullied and threatened. Her sworn story contradicts Starr's depiction.

If Lewinsky is telling the truth, Starr is a liar. In his letter to Brill, Starr wrote, "This Office never asked Ms. Lewinsky to agree to wire herself for a conversation with Mr. Jordan or the President. You cite no source at all; nor could you, as we had no such plans." Yet Starr's number-one source said Starr's people wanted her to record Currie, Jordan and, maybe, the President. Starr is even contradicted on this point by a memo from his own office, which was part of the appendices to his report. The document noted, "Lewinsky, who was 24 years of age when approached by the [Office of Indepenedent Counsel] on January 16, 1998, was not prepared to wear a wire and/or record telephone conversations. The request to do so was a lot to handle that day."

The evidence is strong that Starr's office intimidated Lewinsky and violated guidelines designed to protect civil liberties and that Starr prevaricated about what happened during that historic encounter. He is not qualified to be arguing for anyone else's impeachment. And there's more Starr funny-business worthy of scrutiny: leaks from his office, alleged pay-offs to his key Whitewater witness, and the possibility he did not reveal a conflict of interest when he sought permission to add the Lewinsky matter to his investigative shopping list. Should the House Judiciary Committee ever get around to holding impeachment hearings and Starr is called to testify, there will be plenty of tough questions for the Democrats to hurl at him. We'll see if Starr can be as shifty as his prey.

Not Just Sex

Now on to the promised defense. Well, it's not so much a defense as a shot at Starr's critics. Since the nation first learned of the kneepads fan from Beverly Hills, Clinton supporters and Starr-haters have argued that Monicagate is only about sex. Its members have tagged Starr a sex-obsessed Ahab. They have decried his investigation, as my homebase The Nation put it, as "sexual McCarthyism," nothing more than a prurient safari. They have complained that Starr has no right to snoop into a consensual sexual interaction. Leftist Populist Numero Uno Michael Moore, for one, declared "a person's private life -- their sex life -- is absolutely nobody's business as long as the sex is between adults and it is consensual. Period." Moore won himself a boatload of attention by calling on the masses to vote Democrat -- "a legal act of civil disobedience," he wittily put it -- in order to stop the "witch hunt."

While the lead item of this column demonstrates -- convincingly, of course -- that Starr is a man not to be trusted, the it's-only-sex critics are wrong. Of them I would ask a series of questions:

1. Do women have the right to sue for sexual harassment? If the answer is yes, go on to the next question.

2. Do women who file sexual harassment suits have the right, as the law currently provides, to explore patterns of conduct engaged in by the accused, in order to make their case? If the answer is yes, go on to the next question.

3. When women try to exercise this right, under the watchful eye of a judge, does the accused have the obligation to answer questions -- that is, queries deemed proper by a judge -- truthfully? If the answer is yes, go on to the next question.

4. If the accused fails to do so, does this undermine the accuser's access to due process? Should the accused then be sanctioned or punished?

You get the drift. Those who shriek that Monicagate is only about sex are suggesting, wittingly or not, that women should not be allowed to pursue aggressively sexual harassment cases under the existing law. If privacy is the ultimate issue at stake, then let's be consistent. Those who claim Clinton should not have had to answer questions about Lewinsky -- even after Judge Susan Webber Wright allowed this line of inquiry before setting the Lewinsky business aside in the Paula Jones case -- are forced, if they wish to be champions of principle, to accept the position that plaintiffs in sexual harassment cases cannot ask the accused about his behavior in other relationships. Suppose the boss who fired a female subordinate after she rebuffed his advances gave a promotion to a woman who (consensually) slept with him. Under the Clinton principle, the dismissed employee could not inquire about that. Imagine if Clarence Thomas had been asked, "Did you engage in sexual activity with women you worked with you and then rewarded them with raises and promotions or transferred them to other slots?" (We're just supposing here.) If Thomas had said, "I'm not going to answer that" -- perhaps believing these affairs had been consensual -- his foes would have squealed for his head; his loyalists would have claimed the question was improper. Do we really want to let the accused in sexual harassment suits decide for themselves what is consenual?

One can assert that patterns of conduct should never be be part of the effort to resolve a particular dispute between two people, that all that counts is what happened between the individuals and what the evidence proves regarding this specific point of conflict. Conservatives often make that case. Yet in re Lewinsky, progressives are suggesting the accused has the right to determine on his own whether to answer questions a judge has ruled as legitimate. And conservatives -- to continue the twist -- are hailing the right of the accuser to diverge from the matter at hand in search of information that may contextually suggest guilt. The wires are crossed.

It's not unreasonable to say that individual privacy is a priority. But if you adopt the anti-witch hunters view, it means you are willing to raise the bar higher for women who file sexual harassment suits.

In the Jones case, Clinton could have chosen not to answer the Lewinsky questions -- and the other queries about women other than Jones -- and forced a confrontation that the courts would then have had to arbitrate. Instead, he wrote his own rules. Even if the Jones-Lewinsky trap was orchestrated by a right-wing cabal, Clinton's options remained the same. Respect the law or lie. He was untrue to his obligations as a citizen and as a president. Despite the it's-just-sex crowd's effort to portray Clinton as martyr for privacy, he was not engaging in an act of civil disobedience when he lied.

Witch hunts were hysterical excercises in which the marginal were falsely accused, as zealots sought out that which did not exist. McCarthyism was based on reckless charges, and its practitioners ruined lives through guilt by association and punished people for the ideas they held. Monicagate is not in the league of these moments of madness. Clinton shares little in common with the innocent victims of Salem's witch-chasers and Joe McCarthy's red-baiters.

Sure, the Jones case was weak and politically motivated. Yes, the right has been gunning for Clinton. Certainly, Starr -- who never should have been appointed independent counsel due to his conflicts of interest and his political baggage -- was distinctly unsuited to probe such a sensitive area as the President's sex life. Indeed, the sexual nature of Clinton's predicament was eagerly exploited by his foes and the media. By all means, Starr's official conduct has been a horror. And none of this is worth the trouble of impeachment, for Clinton's childish and reckless wrongdoing did not threaten the security or safety of the nation or the Constitution. But if the Democrats are not wiped by the Republicans on election day, liberal Clinton-supporters and the sex-only Starr-bashers ought to not take comfort or happily claim vindication. For what great principle has been defended? The right to lie in a civil sexual harassment case?

The anti-Starr gang should realize that one need not diminish Clinton's misdeeds, issue exaggerated claims about the right to privacy, obsess over Starr's supposed obsession with sex, nor mischaracterize what Monicagate is about, to denounce Starr's serious excesses and the Republicans' impeachment folly.

Now that the elections are done -- thank God! -- attention will shift back to impeachment process. Ugh. Democrats on the House Judiciary Committee were reporting before the elections that a few Republicans were hinting they were not enthusiastic about a long drawn-out impeachment process. Consider chairman Henry Hyde for a moment. He's seventy-four; he's been in Congress over two decades. This will probably be the last thing he does that anyone remembers. Does he want to preside over a mess that is likely to produce a party-line vote on impeachment? Especially when the prevailing assumption is that if the yahoo Republicans in the House do manage to engineer a full House vote for impeachment, there is no way the adults in the Senate will go along. Hyde has said he wants to see hearings completed by the end of the year. At least, keep the circus short. But in Congress-time, that would mean moving faster than the speed of light. And everyone knows that's impossible.

If Hyde or any reasonable Republican are having second throughts, they have a problem. What's the exit strategy? Impeachment is like Bosnia. The House Republicans cannot pull out without showing weakness. And the anti-Clinton diehard will fight bitterly to preserve their get-Clinton quest.

The Republicans are stuck with impeachment. The republic is stuck with Starr. But progressive advocates of civil liberties and privacy are not stuck with Clinton and the Clintonites' rhetorical arguments against Starr. In Starr, progressives and the President do share a common foe. But the left's opposition should be based on the real wrongs committed by this not-so independent counsel and not on the Clintonian spin that holds this affair entails nothing other than sex. The principled Starr-haters can learn from the President's own playbook. The honest and honorable position in the Starr- Clinton cat-fight is triangulation.

-- David Corn