Before the flood

Why Clinton should demand impeachment hearings

by Harvey Silverglate and Dan Kennedy

Ken Starr has Bill Clinton right where he wants him.

In a little over a week, the independent counsel and his minions will travel to the White House and ask the president of the United States whether he and Monica Lewinsky ever had sex -- and whether he ever urged her to lie about it under oath.

Of course, Starr and his posse won't want to risk being bamboozled by any of Clinton's famously legalistic responses. So they'll interrogate him in the most minute, intimate detail about his relationship with this unfortunate young woman. Mr. President, do you consider fellatio to be sex? Did Ms. Lewinsky perform fellatio on you? Did you at any time suggest that no one other than the two of you ever had to find out about this arrangement? Inevitably, the answers to these humiliating questions will leak out.

It is, in fact, a trap -- a perjury trap, as lawyers call it, exquisitely designed by Starr to criminalize Clinton's past behavior. And it's a trap that has been at the heart of some of the country's most memorable scandals. A young congressman named Richard Nixon made his career by going after Alger Hiss, an urbane, Ivy League-educated State Department lawyer who went to prison not because of Nixon's claim that he was a Communist, but rather because he perjured himself before a congressional committee. Nixon himself met his overdue end not because of the Watergate break-in, but because he lied to the American people about his role in it. Conversely, Oliver North escaped prison in the Iran-contra affair because a judge ruled that his self-incriminating, but apparently truthful, testimony before Congress could not be used against him. The lesson for Clinton, and for those who would defend him, is clear: whatever his misdeeds, lying about them will only make things worse.

No doubt the results of the test on the infamous dress stain will have much to do with how the president crafts his testimony. But if those results are ambiguous, or if Starr keeps them to himself until after his trip to the Oval Office, then Clinton must choose from among multiple perils. If he denies having had sex with Lewinsky, he runs the risk of being accused of perjuring himself in a grand-jury proceeding. Even if Clinton's denial were truthful, there is so much circumstantial evidence suggesting an affair that Starr would probably attempt to make the case against him anyway. And if Clinton admits to a sexual relationship, he'll be exposed as a liar -- and, at least theoretically, could be accused of perjuring himself by denying the affair when he was deposed in Paula Jones's civil suit.

Not that Starr is going to indict Clinton and send federal marshals to lead him out of the White House in handcuffs and leg irons. No, Starr's endgame has been clear for some time: stand the judicial system on its head by using its awesome powers of subpoena and indictment not to prosecute criminals, but rather to further his political crusade, a crusade whose ultimate mission is to impeach Clinton and remove him from office. The upcoming video inquisition of Clinton is emblematic of Starr's abusive tactics. The grand-jury system was designed to protect citizens from a runaway prosecutor. In this case, Starr, the very embodiment of the runaway prosecutor, is using the grand jury to entrap his quarry and to bolster the case for impeachment.

Given the certain dangers that Clinton faces, it is astounding that he and his defenders insist on a strategy of stonewalling and delay. All that can accomplish is to postpone the day when Clinton becomes a disgraced ex-president. In fact, the poll-inflated bubble in which Clinton has existed in recent months is about to burst. The only chance Clinton has of salvaging his presidency is to take the kind of bold, decisive action that has been entirely absent from his scandal-defense operation thus far.

First, he should shut down Starr's endless, $40 million investigation by issuing presidential pardons to everyone who has been indicted by Starr or who is in danger of being indicted -- not just friends such as his confidant Vernon Jordan and his former buddy Webster Hubbell, but also enemies such as former Arkansas governor Jim Guy Tucker.

Second, he should challenge Starr to send his final report to Congress at the earliest opportunity.

And finally, Clinton should deliver a nationally televised address in which he promises to cooperate fully and truthfully with a congressional inquiry into his conduct. By promising to testify under oath in a public setting, Clinton would take away Starr's ability to maneuver via secrecy and strategically opportune leaks.

In other words, Clinton himself should demand that the House begin impeachment hearings.

The strongest argument for this drastic step is that such hearings are going to happen, with Clinton's cooperation or without it, and if he doesn't take control of the process it's likely to ruin him. Starr's excesses aside, the president's problems are of his own making. Starr's final report to Congress is expected to address not just whether Clinton was serviced by his young intern and then urged her to lie about it, but much more substantial matters as well, such as the "talking points" memo, which instructed Linda Tripp on how to lie under oath about an alleged groping incident involving former White House aide Kathleen Willey; for the moment, Lewinsky is claiming authorship, but that strains credulity. There are also Vernon Jordan's employment-counseling services for Lewinsky, which, on their face, bear a striking resemblance to Jordan's earlier efforts to steer fat legal fees to Webster Hubbell at a time when Starr was attempting to negotiate a plea-bargaining deal with Hubbell; the firings in the White House travel office; Hillary Rodham Clinton's lost-and-found billing records, which relate directly to possible wrongdoing in the Whitewater real-estate deal (remember that?); and, most ominous, the 900 FBI records on prominent Republicans that may have been used -- misused, that is -- by White House dirty-tricks operatives, a case with truly Nixonian implications. These are serious issues, and it would be far better for Clinton if he -- to paraphrase an earlier broken promise -- told us more rather than less, and sooner rather than later. (Ironically, Clinton is safe, for now, on the issue of campaign finance, the source of what is potentially his most serious misdeed: the matter is still being investigated by the Justice Department because its top administrator, Attorney General Janet Reno, refuses to turn the matter over to an independent counsel.)

The biggest risk for Clinton is that he would touch off a firestorm of protest, much as Richard Nixon did when he removed special prosecutor Archibald Cox in the Saturday Night Massacre a quarter-century ago. Indeed, Starr could respond by taking the constitutionally dubious step of indicting Clinton, which might make it necessary for Clinton to pardon himself (itself constitutionally questionable), which would enrage his enemies and much of the public as well. The key is for Clinton to break from his infuriating habit of blaming everyone but himself. He must take personal responsibility for his actions -- and cast such an audacious series of steps as a matter of high principle.

Clinton is, if nothing else, a great communicator. By explaining the stakes involved, he can blunt the criticism and get out in front of the forces that threaten to swallow him and damage the rule of law. The public needs to be reminded that, because of Starr's excesses, a mother has been forced to testify against her daughter. The Secret Service's ability to hold the trust of future presidents has been so damaged that Congress may need to pass corrective legislation. The attorney-client privilege came within a hair's-breadth of being substantially weakened. All this in the name of an independent-counsel law so open-ended that Starr doesn't even need a crime to investigate -- just a target, and unlimited resources to get something on that target.

Indeed, an increasing number of legal experts believe that the independent-counsel law has been an abysmal failure; it is likely to die a well-deserved death, or undergo radical reform, when it comes up for renewal next year. Starr's inquiry, of course, is Exhibit A in the case for abolishing the independent counsel. Why should Clinton and his presidency continue to be victimized by a law that nearly everyone agrees has been a disaster?

The country has been conditioned to look at impeachment as a drastic measure bound to a spark a constitutional crisis. But many constitutional scholars argue that impeachment should not be seen as a last resort but, rather, as the proper forum in which to resolve questions about presidential behavior such as those being investigated by Starr. New Republic legal-affairs editor Jeffrey Rosen, in an op-ed piece for the New York Times on July 30, noted that Alexander Hamilton believed a president couldn't be brought up on criminal charges until after he had been impeached and removed from office. "Members of Congress who take their constitutional duties seriously should preempt Mr. Starr's investigation by holding preliminary impeachment hearings immediately," Rosen wrote. It would be disastrous for Clinton if anyone other than he were to lead the call for such hearings.

Besides, the chances of Clinton's winning the public over to his side are good if all that's at issue is his having had sex with Lewinsky and then lying about it in a civil deposition. Poll after poll shows that Clinton's job-approval rating remains high and that, though much of the public believes he and Lewinsky had a sexual affair, most do not believe such an indiscretion is sufficient to drive Clinton from office. Starr, on the other hand, is widely viewed as a narrow-minded, sex-obsessed inquisitor whose heavy-handed tactics have ruined careers and reputations.

No one can doubt the heavy personal cost of Starr's investigation and Clinton's stonewalling. The current issue of the Nation reports that more than 100 current and former White House officials, as well as another 200 to 300 in Arkansas and elsewhere, have paid (or, more likely, owe) more than $23 million in legal fees. These range from the $70,000 incurred by Steve Smith, a former low-level Clinton aide now teaching at the University of Arkansas, to the $2 million owed by Tucker, a former business partner of Jim and Susan McDougal. Even Kramerbooks, the small, independent Washington bookstore where Lewinsky was alleged to have bought a gift for Clinton, was forced to pay lawyers $100,000 to fight a Starr subpoena for a list of Lewinsky's purchases -- a signal example of how Starr has sought to push the prosecutorial envelope at every stage of his investigation. The more that the public understands how out of control Starr has been, the more it would support a move to shut him down.

Certainly Clinton wouldn't be impeached for having sex with Lewinsky and then lying about it in a civil case that has since been thrown out. If Clinton sexually exploited a 21-year-old intern, then he deserves to be harshly criticized, but not removed from office. Besides, one suspects such misbehavior is not unknown in the corridors of Congress. House Speaker Newt Gingrich, for one, is widely reported to share (and to have acted upon) Clinton's peculiarly Southern belief that fellatio isn't really sex.

But the point of moving the inquiry against Clinton from the judicial to the political arena isn't to save his skin, even though that may be the result. It's to resolve questions that are ultimately political in a political manner, with the people's elected representatives publicly deciding whether Clinton is fit to hold office, and then having to answer to their constituents for their decision. Most important, it's to resolve once and for all the myriad questions swirling around Clinton's presidency. Regardless of what the president may or may not have done, the people who elected him and reelected him deserve better than to have him hog-tied by legal probes from Inauguration Day 1993 until he steps down in January 2001.

Indeed, the oppressive presence of a permanent inquisition constitutes an even more effective check on Clinton's power than the Republican control of Congress. Starr's endless investigation, and Clinton's own culpability, have already brought an early end to the Clinton presidency, even if Clinton staggers on through the end of his term. Though second-term presidents rarely accomplish much, the era of good feelings that seemed to prevail before January 21 (i.e., Monica Day) suggested that Clinton and Congress were ready to move ahead on a modest agenda. Clinton was widely expected to push for new programs aimed at improving education and child care this year. Republicans appeared ready to deal on the touchiest issue of all: making the Social Security system solvent without screwing future retirees. All that's gone now; Clinton's only goal is to survive.

Perhaps the best argument for an impeachment inquiry is that the system guarantees that Clinton's fate would be decided by cautious, reasonable people, not by a zealot such as Starr or by Clinton's ideological enemies -- and in public, not by a secret grand-jury "Starr chamber." If Clinton were impeached by the House, he would be tried in the Senate, with a two-thirds majority needed for removal. That virtually guarantees that the balance of power would be held by moderate members of his own party. When Richard Nixon resigned, in 1974, it was because he knew he'd lost moderate Republican senators such as Howard Baker and William Cohen. In Clinton's case, the swing votes would belong to moderate Democrats such as Joseph Lieberman and John Glenn. Surely a majority of the public could accept the judgment of such solid citizens.

Bill Clinton needs to stand up to Starr and stand up for the Constitution by bringing this runaway prosecution to a close. By taking these steps, Clinton can help undo some of the harm to our institutions (not to mention our sensibilities) that he and Starr, in their uniquely symbiotic way, have inflicted. Since 1994, when Starr was appointed, we have been subjected to an ugly pas de deux: Starr pursues, Clinton stonewalls, and God help anyone who gets in the way. Webster Hubbell, Jim Guy Tucker, Susan McDougal, and the late Jim McDougal are hardly saints, but they owe their ruination to their dealings with Clinton and to Starr's relentless, and reckless, pursuit. It's time to bring this to a close.

Impeachment hearings may seem like a high price for Clinton to pay. But only by taking personal responsibility for his actions -- and putting his fate in the hands of Congress, where it belongs -- can he save his presidency and preserve some measure of honor. Clinton and his supporters have been lulled by the polls into thinking the president can get away with it for as long as he likes, but that sense of security has always been built on the false hope that they can postpone the inevitable forever. This is a president who's known to brood about his place in history. Without a radical change of course, that place will be securely fastened alongside those of Nixon and Harding, two presidents who were destroyed by corruption and, more to the point, by their inability and unwillingness to face up to it before it was too late.