Imprudence and partisanship: Starr's OIC and the Clinton-Lewinsky affair

Fordham Law Review

Volumn 68, Issue 3, 1999, Pages 639-721

  Gordon, Robert W ^a  

^a NONE

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EID: 0033270017     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (306)

1. 28 U.S.C. §§ 591-99 (1994) (expired 1999).
2. See The Future of the Independent Counsel Act: Hearings Before the Senate Comm. on Governmental Affairs, 106th Cong. 149 (1999) (statement of Sen. Bennett); Joseph E. DiGenova, The Independent Counsel Act: A Good Time to End a Bad Idea, 86 Geo. L.J. 2299 (1998); Alan Charles Raul, It's Time for Congress to Fire the Independent Counsel, The Hill, May 6, 1998, at 48; Benjamin Wittes, A Kiss of Death for Independent Counsels, Wash. Post, Aug. 11, 1998, at A21.
3. See The Future of the Independent Counsel Act: Hearings Before the Senate Comm. on Governmental Affairs, 106th Cong. 149 (1999) (statement of Sen. Bennett); Joseph E. DiGenova, The Independent Counsel Act: A Good Time to End a Bad Idea, 86 Geo. L.J. 2299 (1998); Alan Charles Raul, It's Time for Congress to Fire the Independent Counsel, The Hill, May 6, 1998, at 48; Benjamin Wittes, A Kiss of Death for Independent Counsels, Wash. Post, Aug. 11, 1998, at A21.
4. See The Future of the Independent Counsel Act: Hearings Before the Senate Comm. on Governmental Affairs, 106th Cong. 149 (1999) (statement of Sen. Bennett); Joseph E. DiGenova, The Independent Counsel Act: A Good Time to End a Bad Idea, 86 Geo. L.J. 2299 (1998); Alan Charles Raul, It's Time for Congress to Fire the Independent Counsel, The Hill, May 6, 1998, at 48; Benjamin Wittes, A Kiss of Death for Independent Counsels, Wash. Post, Aug. 11, 1998, at A21.
5. See The Future of the Independent Counsel Act: Hearings Before the Senate Comm. on Governmental Affairs, 106th Cong. 149 (1999) (statement of Sen. Bennett); Joseph E. DiGenova, The Independent Counsel Act: A Good Time to End a Bad Idea, 86 Geo. L.J. 2299 (1998); Alan Charles Raul, It's Time for Congress to Fire the Independent Counsel, The Hill, May 6, 1998, at 48; Benjamin Wittes, A Kiss of Death for Independent Counsels, Wash. Post, Aug. 11, 1998, at A21.
6. 487 U.S. 654, 697-734 (1988) (Scalia, J., dissenting); see also Nick Bravin, Note, Is Morrison v. Olson Still Good Law? The Court's New Appointments Clause Jurisprudence, 98 Colum. L. Rev. 1103, 1125-35 (1998) (demonstrating in detail how some counsels appointed under the Act fulfilled Justice Scalia's prophecies to the letter).
7. See 28 U.S.C. § 594(a).
8. The Act did provide for reimbursement of lawyers' fees to unindicted targets. See id. § 593(f).
9. "Firestorm" was the label the press affixed to the public outcry that followed the "Saturday Night Massacre" of October 20, 1973, President Nixon's dismissal of Archibald Cox, the Watergate Special Prosecutor. See Stanley I. Kutler, The Wars of Watergate 406 (1990).
10. See David Grann, Prosecutorial Indiscretion, New Republic, Feb. 2, 1998, at 18, 18-19.
11. See Neil A. Lewis, Former HUD Secretary Goes on Trial, N.Y. Times, Sept. 6, 1999, at A14. The case ended abruptly on the eve of trial, when Cisneros pled guilty to the misdemeanor of lying to the FBI and agreed to pay a $10,000 fine.
12. See Neil A. Lewis, Long, Costly Case Against Cisneros Ends in Plea Deal, N.Y. Times, Sept. 8, 1999, at A1.
13. See Jane Mayer, The Lover in Jail, New Yorker, Nov. 30, 1998, at 55, 58-59. The sister and brother-in-law were rewarded for their generosity by having to plead guilty to a felony count. See id. at 59. How such prosecutions are thought to serve to police the integrity of high officials in the performance of their offices is a mystery.
14. Semiannual GAO accountings of independent counsel expenditures have revealed that Starr spent $40 million through September, 1998 and an additional $7 million between October 1998, and March 1999. See Bill Miller, Starr Spent $7 Million During Impeachment Period, Wash. Post, Oct. 1, 1999, at A15.
15. See Office of the Independent Counsel, Referral to the United States House of Representatives Filed pursuant to 28 U.S.C. § 595(c), H.R. Doc. No. 105-310 (2d Sess. 1998) [hereinafter Starr Report].
16. See The Future of the Independent Counsel Act: Hearings before the Senate Comm. on Governmental Affairs, 106th Cong. 419-425 (1999) (statement of Hon. Kenneth W. Starr, Independent Counsel).
17. See, e.g., Standards Relating to the Administration of Criminal Justice Standard 3-3.9(a) (1992) ("A prosecutor should not institute, [or] cause to be instituted . . . criminal charges in the absence of sufficient admissible evidence to support a conviction.") Likewise, Standard 3-3.9(b) adds that "[t]he prosecutor is not obliged to present all charges which the evidence might support. The prosecutor may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that sufficient evidence may exist which would support a conviction." See id. Standard 3-3.9(b).
18. See Jonathan Simon, Governing Through Crime, in The Crime Conundrum: Essays on Criminal Justice 171 (George Fisher & Lawrence M. Friedman eds., 1997).
19. See, e.g., 18 U.S.C. §§ 287, 1001 (1994) (proscribing fraud); id. §§ 1503-1505, 1509-1510 (obstruction of justice); id. § 201 (bribery); id. § 872 (extortion); id. § 873 (blackmail).
20. See generally Kate Stith & José A. Cabranes, Fear of Judging: Sentencing Guidelines in The Federal Courts (1998) (showing how the Federal Sentencing Guidelines have transferred de facto sentencing discretion from judges to prosecutors).
21. See Richard A. Posner, An Affair of State: The Investigation, Impeachment, and Trial of President Clinton 88-89 (1999).
22. An instructive parallel to our present mania for criminalizing broad categories of misconduct as felonies and the problems that it poses for dispensing equitable justice can be found in 18th century England's attachment to the death penalty. When English criminal law removed "benefit of clergy" as an escape-hatch for the literate from conviction of felony, the English found themselves with a criminal code that prescribed death as the penalty for hundreds of crimes, including offenses such as petty theft, even picking pockets. See J.M. Beattie, Crime and The Courts in England, 1660-1800, at 420-49 (1986) . The result was of course that the system faced a perpetual crisis of legitimacy. It could not possibly enforce the bloody code as written and hope to preserve a reputation for fair enforcement of the laws. Its remedy - the only possible remedy, until the code was rewritten to institute a semblance of proportionality to punishments - was very selective prosecution and still more selective use of jury and judicial discretion and of the pardoning power, which could take into account factors like the relative gravity of the offense and mitigating circumstances. See id. The English had what seems to be the invariable experience with systems of mandatory penalties that do not take into account large differences in the degree of gravity of offenses. Enforcers were constrained to find ways around them, or nullify the penalties completely, to do some semblance of justice. See Michael Tonry, Mandatory Penalties, in 16 Crime and Justice: A Review of Research 247-49 (M. Tonry ed., 1992) (discussing adaptive responses to mandatory penalties in Britain, such as an increased unwillingness of jurors to convict, use of pardons and exemptions from punishment, and narrow interpretations of procedural rules).
23. An instructive parallel to our present mania for criminalizing broad categories of misconduct as felonies and the problems that it poses for dispensing equitable justice can be found in 18th century England's attachment to the death penalty. When English criminal law removed "benefit of clergy" as an escape-hatch for the literate from conviction of felony, the English found themselves with a criminal code that prescribed death as the penalty for hundreds of crimes, including offenses such as petty theft, even picking pockets. See J.M. Beattie, Crime and The Courts in England, 1660- 1800, at 420-49 (1986) . The result was of course that the system faced a perpetual crisis of legitimacy. It could not possibly enforce the bloody code as written and hope to preserve a reputation for fair enforcement of the laws. Its remedy - the only possible remedy, until the code was rewritten to institute a semblance of proportionality to punishments - was very selective prosecution and still more selective use of jury and judicial discretion and of the pardoning power, which could take into account factors like the relative gravity of the offense and mitigating circumstances. See id. The English had what seems to be the invariable experience with systems of mandatory penalties that do not take into account large differences in the degree of gravity of offenses. Enforcers were constrained to find ways around them, or nullify the penalties completely, to do some semblance of justice. See Michael Tonry, Mandatory Penalties, in 16 Crime and Justice: A Review of Research 247-49 (M. Tonry ed., 1992) (discussing adaptive responses to mandatory penalties in Britain, such as an increased unwillingness of jurors to convict, use of pardons and exemptions from punishment, and narrow interpretations of procedural rules).
24. See H. Richard Uviller, Virtual Justice: The Flawed Prosecution of Crime in America 162-63 (1996); Abraham McLaughlin, Prosecutors' Power Now on the Defense, Christian Sci. Monitor, Mar. 25, 1999, at 1.
25. See H. Richard Uviller, Virtual Justice: The Flawed Prosecution of Crime in America 162-63 (1996); Abraham McLaughlin, Prosecutors' Power Now on the Defense, Christian Sci. Monitor, Mar. 25, 1999, at 1.
26. Even counsels appointed under the Independent Counsel Act have shown themselves perfectly capable of this kind of restraint. For example, Jacob Stein, and James McKay, both appointed to investigate Attorney General Meese, and Joseph diGenova, appointed to investigate officials of the Bush Administration who poked into Bill Clinton's passport files during the Presidential election campaign, turned up evidence out of which a zealous prosecutor could probably have fashioned some criminal indictments, but none of these counsel thought the conduct involved was serious enough to justify further pursuit, and eventually closed up shop with a report. See David Johnston, No Charges to Be Filed for Search of Clinton Files, N.Y. Times, Dec. 3, 1994, at A11 (diGenova investigation); Ruth Marcus, Justice Dept. Report Sharply Criticizes Meese, Wash. Post, Jan. 17, 1989, at A1 (McKay investigation); Mary Thornton, Inquiry Ends into Loan, Federal Hiring; Probe Rules Out Prosecution of Meese, Wash. Post, Sept. 21, 1984, at A1 (Stein investigation).
27. Even counsels appointed under the Independent Counsel Act have shown themselves perfectly capable of this kind of restraint. For example, Jacob Stein, and James McKay, both appointed to investigate Attorney General Meese, and Joseph diGenova, appointed to investigate officials of the Bush Administration who poked into Bill Clinton's passport files during the Presidential election campaign, turned up evidence out of which a zealous prosecutor could probably have fashioned some criminal indictments, but none of these counsel thought the conduct involved was serious enough to justify further pursuit, and eventually closed up shop with a report. See David Johnston, No Charges to Be Filed for Search of Clinton Files, N.Y. Times, Dec. 3, 1994, at A11 (diGenova investigation); Ruth Marcus, Justice Dept. Report Sharply Criticizes Meese, Wash. Post, Jan. 17, 1989, at A1 (McKay investigation); Mary Thornton, Inquiry Ends into Loan, Federal Hiring; Probe Rules Out Prosecution of Meese, Wash. Post, Sept. 21, 1984, at A1 (Stein investigation).
28. Even counsels appointed under the Independent Counsel Act have shown themselves perfectly capable of this kind of restraint. For example, Jacob Stein, and James McKay, both appointed to investigate Attorney General Meese, and Joseph diGenova, appointed to investigate officials of the Bush Administration who poked into Bill Clinton's passport files during the Presidential election campaign, turned up evidence out of which a zealous prosecutor could probably have fashioned some criminal indictments, but none of these counsel thought the conduct involved was serious enough to justify further pursuit, and eventually closed up shop with a report. See David Johnston, No Charges to Be Filed for Search of Clinton Files, N.Y. Times, Dec. 3, 1994, at A11 (diGenova investigation); Ruth Marcus, Justice Dept. Report Sharply Criticizes Meese, Wash. Post, Jan. 17, 1989, at A1 (McKay investigation); Mary Thornton, Inquiry Ends into Loan, Federal Hiring; Probe Rules Out Prosecution of Meese, Wash. Post, Sept. 21, 1984, at A1 (Stein investigation).
29. A well-known example of such professionalism can be seen in the Manhattan DA's office since Frank Hogan's era.
30. See generally David Luban, Lawyers and Justice: An Ethical Study 50-66 (1988) (noting that the dominant ethic of American legal profession is the ethic of partisan advocacy).
31. The best description and critique I know of this syndrome of misplaced adversariness is in William Simon, The Practice of Justice: A Theory of Lawyers' Ethics 26-52 (1998).
32. Situations in which lawyers are not supposed to take a one-sided, but instead adopt an impartial, view of facts and law and tell the truth so far as they know it include: a lawyer certifying to an agency that his client is in compliance with regulatory laws or a consent decree; a lawyer informing a judge that his client has no criminal record; a lawyer assuring a magistrate that all relevant documents sought in a discovery request have been produced; a law firm reporting to directors who have hired it to investigate the source of illegal practices that have got the company into trouble; a lawyer asked by a trustee to give an opinion about the trustee's duties under a trust deed; and a lawyer asked by a client to assess the legal risks of a proposed course of conduct.
33. See 28 U.S.C. §§ 591-594 (1994) (expired 1999).
34. I am going to put aside for the purposes of this essay the most troubling suggestions of misconduct that have been made, but not proved if they ever will be, against Starr and the OIC. The most serious of these is that lawyers on Starr's team and the lawyers for Paula Jones, motivated by a shared political malice, colluded to put the President in criminal jeopardy; by setting him up to make statements in a civil deposition that he would suppose he could make without fear of contradiction because Lewinsky's affidavit would back him up, and then arranging to deploy the unlimited investigative powers of the OIC to prove the statements false, thus laying the foundation for an impeachment inquiry and possible later prosecution for perjury, witness tampering, and obstruction of justice. Circumstantial evidence points to some degree of collusion between the OIC and the Jones lawyers, mediated by the young conservative lawyers working behind the scenes on the Jones case (the "elves", as they came to be called) and by the mysterious New York publicist, Lucianne Goldberg. But how far these connections led to actual coordination of strategies remains obscure. See, e.g., Renata Adler, The Wages of Fear, L.A. Times, Mar. 14, 1999, at 3 (reviewing Andrew Morton, Monica's Story (1999)); Joan Didion, Uncovered Washington, N.Y. Rev. of Books, June 24, 1999, at 72 (reviewing Michael Isikoff, Uncovering Clinton (1999)); Susan Schmidt, Tripp's Tapes: How They Got To Starr Is a Complex Tale, Wash. Post, Oct. 11, 1998, at A1; Don Van Natta, Jr., New Details on When Starr Was Told of Clinton Affair, N.Y. Times, Oct. 10, 1998, at All;
35. I am going to put aside for the purposes of this essay the most troubling suggestions of misconduct that have been made, but not proved if they ever will be, against Starr and the OIC. The most serious of these is that lawyers on Starr's team and the lawyers for Paula Jones, motivated by a shared political malice, colluded to put the President in criminal jeopardy; by setting him up to make statements in a civil deposition that he would suppose he could make without fear of contradiction because Lewinsky's affidavit would back him up, and then arranging to deploy the unlimited investigative powers of the OIC to prove the statements false, thus laying the foundation for an impeachment inquiry and possible later prosecution for perjury, witness tampering, and obstruction of justice. Circumstantial evidence points to some degree of collusion between the OIC and the Jones lawyers, mediated by the young conservative lawyers working behind the scenes on the Jones case (the "elves", as they came to be called) and by the mysterious New York publicist, Lucianne Goldberg. But how far these connections led to actual coordination of strategies remains obscure. See, e.g., Renata Adler, The Wages of Fear, L.A. Times, Mar. 14, 1999, at 3 (reviewing Andrew Morton, Monica's Story (1999)); Joan Didion, Uncovered Washington, N.Y. Rev. of Books, June 24, 1999, at 72 (reviewing Michael Isikoff, Uncovering Clinton (1999)); Susan Schmidt, Tripp's Tapes: How They Got To Starr Is a Complex Tale, Wash. Post, Oct. 11, 1998, at A1; Don Van Natta, Jr., New Details on When Starr Was Told of Clinton Affair, N.Y. Times, Oct. 10, 1998, at All;
36. I am going to put aside for the purposes of this essay the most troubling suggestions of misconduct that have been made, but not proved if they ever will be, against Starr and the OIC. The most serious of these is that lawyers on Starr's team and the lawyers for Paula Jones, motivated by a shared political malice, colluded to put the President in criminal jeopardy; by setting him up to make statements in a civil deposition that he would suppose he could make without fear of contradiction because Lewinsky's affidavit would back him up, and then arranging to deploy the unlimited investigative powers of the OIC to prove the statements false, thus laying the foundation for an impeachment inquiry and possible later prosecution for perjury, witness tampering, and obstruction of justice. Circumstantial evidence points to some degree of collusion between the OIC and the Jones lawyers, mediated by the young conservative lawyers working behind the scenes on the Jones case (the "elves", as they came to be called) and by the mysterious New York publicist, Lucianne Goldberg. But how far these connections led to actual coordination of strategies remains obscure. See, e.g., Renata Adler, The Wages of Fear, L.A. Times, Mar. 14, 1999, at 3 (reviewing Andrew Morton, Monica's Story (1999)); Joan Didion, Uncovered Washington, N.Y. Rev. of Books, June 24, 1999, at 72 (reviewing Michael Isikoff, Uncovering Clinton (1999)); Susan Schmidt, Tripp's Tapes: How They Got To Starr Is a Complex Tale, Wash. Post, Oct. 11, 1998, at A1; Don Van Natta, Jr., New Details on When Starr Was Told of Clinton Affair, N.Y. Times, Oct. 10, 1998, at All;
37. I am going to put aside for the purposes of this essay the most troubling suggestions of misconduct that have been made, but not proved if they ever will be, against Starr and the OIC. The most serious of these is that lawyers on Starr's team and the lawyers for Paula Jones, motivated by a shared political malice, colluded to put the President in criminal jeopardy; by setting him up to make statements in a civil deposition that he would suppose he could make without fear of contradiction because Lewinsky's affidavit would back him up, and then arranging to deploy the unlimited investigative powers of the OIC to prove the statements false, thus laying the foundation for an impeachment inquiry and possible later prosecution for perjury, witness tampering, and obstruction of justice. Circumstantial evidence points to some degree of collusion between the OIC and the Jones lawyers, mediated by the young conservative lawyers working behind the scenes on the Jones case (the "elves", as they came to be called) and by the mysterious New York publicist, Lucianne Goldberg. But how far these connections led to actual coordination of strategies remains obscure. See, e.g., Renata Adler, The Wages of Fear, L.A. Times, Mar. 14, 1999, at 3 (reviewing Andrew Morton, Monica's Story (1999)); Joan Didion, Uncovered Washington, N.Y. Rev. of Books, June 24, 1999, at 72 (reviewing Michael Isikoff, Uncovering Clinton (1999)); Susan Schmidt, Tripp's Tapes: How They Got To Starr Is a Complex Tale, Wash. Post, Oct. 11, 1998, at A1; Don Van Natta, Jr., New Details on When Starr Was Told of Clinton Affair, N.Y. Times, Oct. 10, 1998, at All;
38. I am going to put aside for the purposes of this essay the most troubling suggestions of misconduct that have been made, but not proved if they ever will be, against Starr and the OIC. The most serious of these is that lawyers on Starr's team and the lawyers for Paula Jones, motivated by a shared political malice, colluded to put the President in criminal jeopardy; by setting him up to make statements in a civil deposition that he would suppose he could make without fear of contradiction because Lewinsky's affidavit would back him up, and then arranging to deploy the unlimited investigative powers of the OIC to prove the statements false, thus laying the foundation for an impeachment inquiry and possible later prosecution for perjury, witness tampering, and obstruction of justice. Circumstantial evidence points to some degree of collusion between the OIC and the Jones lawyers, mediated by the young conservative lawyers working behind the scenes on the Jones case (the "elves", as they came to be called) and by the mysterious New York publicist, Lucianne Goldberg. But how far these connections led to actual coordination of strategies remains obscure. See, e.g., Renata Adler, The Wages of Fear, L.A. Times, Mar. 14, 1999, at 3 (reviewing Andrew Morton, Monica's Story (1999)); Joan Didion, Uncovered Washington, N.Y. Rev. of Books, June 24, 1999, at 72 (reviewing Michael Isikoff, Uncovering Clinton (1999)); Susan Schmidt, Tripp's Tapes: How They Got To Starr Is a Complex Tale, Wash. Post, Oct. 11, 1998, at A1; Don Van Natta, Jr., New Details on When Starr Was Told of Clinton Affair, N.Y. Times, Oct. 10, 1998, at All;
39. Don Van Natta, Jr. & Jill Abramson, The President's Trial: The Lawsuit, N.Y. Times, Jan. 24, 1999, at A1.
40. Let me also put aside some of the other familiar criticisms of Starr and the OIC, not because they are not serious, but because others have explored them at length: Starr's (undisclosed, at the time he sought expanded jurisdiction) prior consultations with the Jones lawyers and a group of amici supporting them about the case; his associations with ideological opponents of the President and representation of companies with interests adverse to his Administration's policies; his acceptance (later retracted) of a deanship at Pepperdine Law School funded by Richard Mellon Scaife, an ardent promoter and financier of anti-Clinton investigations and propaganda organs; his staff's long interrogation of Monica Lewinsky after she had asked for, and they had discouraged her from calling, her lawyer; the OIC's leaks of grand jury information to the press, and so forth. See Deborah A. Rhode, Conflicts of Commitment: Legal Ethics in the Impeachment Context, 52 Stan. L. Rev. (forthcoming Jan. 2000) (manuscript at 4-20, 61-76, on file with author) [hereinafter Rhode, Conflicts of Commitment], for a comprehensive and judicious review of the ethics of the IC's conflicts of interest, treatment of witnesses, and other conduct. See also Jane Mayer, How Independent is the Counsel?, New Yorker, Apr. 22, 1996, at 56.
41. Let me also put aside some of the other familiar criticisms of Starr and the OIC, not because they are not serious, but because others have explored them at length: Starr's (undisclosed, at the time he sought expanded jurisdiction) prior consultations with the Jones lawyers and a group of amici supporting them about the case; his associations with ideological opponents of the President and representation of companies with interests adverse to his Administration's policies; his acceptance (later retracted) of a deanship at Pepperdine Law School funded by Richard Mellon Scaife, an ardent promoter and financier of anti-Clinton investigations and propaganda organs; his staff's long interrogation of Monica Lewinsky after she had asked for, and they had discouraged her from calling, her lawyer; the OIC's leaks of grand jury information to the press, and so forth. See Deborah A. Rhode, Conflicts of Commitment: Legal Ethics in the Impeachment Context, 52 Stan. L. Rev. (forthcoming Jan. 2000) (manuscript at 4-20, 61-76, on file with author) [hereinafter Rhode, Conflicts of Commitment], for a comprehensive and judicious review of the ethics of the IC's conflicts of interest, treatment of witnesses, and other conduct. See also Jane Mayer, How Independent is the Counsel?, New Yorker, Apr. 22, 1996, at 56.
42. Let me also put aside some of the other familiar criticisms of Starr and the OIC, not because they are not serious, but because others have explored them at length: Starr's (undisclosed, at the time he sought expanded jurisdiction) prior consultations with the Jones lawyers and a group of amici supporting them about the case; his associations with ideological opponents of the President and representation of companies with interests adverse to his Administration's policies; his acceptance (later retracted) of a deanship at Pepperdine Law School funded by Richard Mellon Scaife, an ardent promoter and financier of anti-Clinton investigations and propaganda organs; his staff's long interrogation of Monica Lewinsky after she had asked for, and they had discouraged her from calling, her lawyer; the OIC's leaks of grand jury information to the press, and so forth. See Deborah A. Rhode, Conflicts of Commitment: Legal Ethics in the Impeachment Context, 52 Stan. L. Rev. (forthcoming Jan. 2000) (manuscript at 4-20, 61-76, on file with author) [hereinafter Rhode, Conflicts of Commitment], for a comprehensive and judicious review of the ethics of the IC's conflicts of interest, treatment of witnesses, and other conduct. See also Jane Mayer, How Independent is the Counsel?, New Yorker, Apr. 22, 1996, at 56.
43. See, e.g., For the Record, Wash. Post, Aug. 19, 1998, at A20 (excerpting an August 17, 1998 CNN interview with Sen. Orrin Hatch in which Hatch defended the Starr investigation).
44. See Videotaped Oral Deposition of William Jefferson Clinton, Jan. 17, 1998, Jones v. Clinton, 990 F. Supp. 657 (E.D. Ark. 1998) (No. 94-290).
45. The OIC said it was five days, but it may have been much earlier than that.
46. See Impeachment Inquiry Pursuant to H. Res. 581: Appearance of Independent Counsel: Hearing Before the House Comm. on the Judiciary, 105th Cong. 182 (1998), reprinted in Impeachment of President William Jefferson Clinton, The Evidentiary Record Pursuant to S. Res. 16, Volume IX, Transcript of November 19, 1998 Presentation by Independent Counsel Kenneth Starr, Hearing Ser. No. 66, S. Doc. No. 106-3, at 182-83 (1999) [hereinafter Starr Presentation].
47. This was the reason Starr gave in testimony before the House Judiciary Committee. See Starr Presentation, supra note 30, at 78-79. Later on he said the reason was that the OIC suspected Carter was part of the "obstruction conspiracy." See Eric Pooley & Michael Weisskopf, How Starr Sees It, Time, Dec. 28, 1998, at 82.
48. See Starr Presentation, supra note 30, at 105-06 (excerpting Lewinsky's grand jury testimony).
49. Starr's grant of immunity to Tripp has complicated her subsequent prosecution by Maryland authorities for wiretapping her conversations with Lewinsky. See Raja Mishra, Tripp Challenges Indictment in Md., Wash. Post, Aug. 19, 1999, at A6.
50. See Starr Report, supra note 11, at 7.
51. The OIC's official rationale for intervening in the Lewinsky matter was that, when they learned from Tripp that Clinton had asked Vernon Jordan to find Lewinsky a job, they recalled that Jordan had helped Webster Hubbell find a job after leaving the administration, and immediately suspected they had found another link in an ongoing "conspiracy" - i.e. a well-oiled obstruction-of-justice scheme whereby Jordan would silence witnesses to Clinton's misdeeds by finding them jobs! This fragile daisy-chain of inference (were they suggesting that every time Clinton asked his old pal Jordan, a famous Washington fixer, to find a friend or associate a job that the purpose must have been to obstruct justice?) served its function of helping the OIC expand its jurisdiction to cover the Lewinsky matter on the ground that it connected Lewinsky, however tenuously, to their Whitewater inquiry; it then disappeared from the OIC's field of vision. Once Lewinsky became the center of their attention, the OIC forgot about the Jordan job-finding conspiracy. For further discussion of this point, see infra note 221 and accompanying text.
52. See, e.g., Richard Benedetto, Mixed Reviews for Clinton Continue, New Poll Shows, USA Today, Feb. 15, 1999, at 10A (discussing poll results whereby 73% of respondents believed that the idea of formally censuring the president should be dropped, and 58% saying criminal charges should not be filed once Clinton leaves office); Clinton Favorability, Job Approval Slip, USA Today, Feb. 17, 1998, at 10A (52% of poll respondents say Starr should stop his investigation).
53. See, e.g., Richard Benedetto, Mixed Reviews for Clinton Continue, New Poll Shows, USA Today, Feb. 15, 1999, at 10A (discussing poll results whereby 73% of respondents believed that the idea of formally censuring the president should be dropped, and 58% saying criminal charges should not be filed once Clinton leaves office); Clinton Favorability, Job Approval Slip, USA Today, Feb. 17, 1998, at 10A (52% of poll respondents say Starr should stop his investigation).
54. See Starr Presentation, supra note 30, at 30.
55. This evidence, of course, was all hearsay, none of which was cross-examined.
56. The OIC, I think, never came close to submitting convincing evidence on its other criminal charges, perjury before the grand jury, obstruction of justice, and abuse of power. In any case, the "justice" that Clinton was alleged to be obstructing was, throughout, the flow of truthful information to the court that was deciding Paula Jones's case; and then the criminal investigation of whether that information had in fact been truthful. All the subsidiary charges of lying to the grand jury, obstruction, etc. are derivative of the OIC's basic assertion that the concealment of Clinton's affair with Lewinsky was a hindrance to the achievement of justice in the Jones case. This point that the grand jury perjury and all the obstruction charges related back to the basic issue of whether important information was blocked from reaching the court trying to resolve the Jones case was stressed in one of the best pieces of legal journalism to analyze the evidence, and one of very few to focus on the critical issue of the concrete harm, if any, Clinton and Lewinsky had threatened to cause to justice for Jones. See Jeffrey Rosen, Material Girl, New Republic, Feb. 8, 1999, at 20.
57. See Gabriel J. Chin & Scott C. Wells, The "Blue Wall of Silence" as Evidence of Bias and Motive to Lie: A New Approach to Police Perjury, 59 U. Pitt. L. Rev. 233, 235-41 (1998) (discussing the prevalence of police perjury and the failure of the criminal justice system to curtail same); Ruben Castaneda, Police Officer Perjury Not Rare, Observers Say; Indictment May Be a First in Pr. George's, Wash. Post, Feb. 17, 1999, at B1 (discussing police perjury in metropolitan Washington, D.C. area); Mark Kendall, A Justice System Inundated with Deceit: Lying in Court Is Pervasive but Prosecutions for Perjury Are Rare, The Press-Enterprise (Riverside, Cal.), May 6, 1998, at A1; Timothy P. O'Neill, Tearing Down the 'Blue Wall of Silence,' Chi. Daily L. Bull., Jan. 22, 1999, at 5 (describing police penury as one of law's "dirty little secrets").
58. See Gabriel J. Chin & Scott C. Wells, The "Blue Wall of Silence" as Evidence of Bias and Motive to Lie: A New Approach to Police Perjury, 59 U. Pitt. L. Rev. 233, 235-41 (1998) (discussing the prevalence of police perjury and the failure of the criminal justice system to curtail same); Ruben Castaneda, Police Officer Perjury Not Rare, Observers Say; Indictment May Be a First in Pr. George's, Wash. Post, Feb. 17, 1999, at B1 (discussing police perjury in metropolitan Washington, D.C. area); Mark Kendall, A Justice System Inundated with Deceit: Lying in Court Is Pervasive but Prosecutions for Perjury Are Rare, The Press-Enterprise (Riverside, Cal.), May 6, 1998, at A1; Timothy P. O'Neill, Tearing Down the 'Blue Wall of Silence,' Chi. Daily L. Bull., Jan. 22, 1999, at 5 (describing police penury as one of law's "dirty little secrets").
59. See Gabriel J. Chin & Scott C. Wells, The "Blue Wall of Silence" as Evidence of Bias and Motive to Lie: A New Approach to Police Perjury, 59 U. Pitt. L. Rev. 233, 235-41 (1998) (discussing the prevalence of police perjury and the failure of the criminal justice system to curtail same); Ruben Castaneda, Police Officer Perjury Not Rare, Observers Say; Indictment May Be a First in Pr. George's, Wash. Post, Feb. 17, 1999, at B1 (discussing police perjury in metropolitan Washington, D.C. area); Mark Kendall, A Justice System Inundated with Deceit: Lying in Court Is Pervasive but Prosecutions for Perjury Are Rare, The Press-Enterprise (Riverside, Cal.), May 6, 1998, at A1; Timothy P. O'Neill, Tearing Down the 'Blue Wall of Silence,' Chi. Daily L. Bull., Jan. 22, 1999, at 5 (describing police penury as one of law's "dirty little secrets").
60. See Gabriel J. Chin & Scott C. Wells, The "Blue Wall of Silence" as Evidence of Bias and Motive to Lie: A New Approach to Police Perjury, 59 U. Pitt. L. Rev. 233, 235-41 (1998) (discussing the prevalence of police perjury and the failure of the criminal justice system to curtail same); Ruben Castaneda, Police Officer Perjury Not Rare, Observers Say; Indictment May Be a First in Pr. George's, Wash. Post, Feb. 17, 1999, at B1 (discussing police perjury in metropolitan Washington, D.C. area); Mark Kendall, A Justice System Inundated with Deceit: Lying in Court Is Pervasive but Prosecutions for Perjury Are Rare, The Press-Enterprise (Riverside, Cal.), May 6, 1998, at A1; Timothy P. O'Neill, Tearing Down the 'Blue Wall of Silence,' Chi. Daily L. Bull., Jan. 22, 1999, at 5 (describing police penury as one of law's "dirty little secrets").
61. See, e.g., Wendy Kaminer, Games Prosecutors Play, Am. Prospect, Sept.-Oct. 1999, at 20 (detailing abuse of power and discretion by police and prosecutors).
62. I have certainly never heard a law-and-order politician get agitated over this routine type of perjury.
63. See, e.g., Perjury Is Hard to Prosecute; Prosecutors See Many Pitfalls in Trying to Get a Conviction for Perjury, News & Record (Greensboro, N.C.), Sept. 26, 1998, at A8 (assessing Clinton's behavior in light of everyday perjuries that are never prosecuted).
64. See, e.g., Impeachment Inquiry Pursuant to H. Res. 581: Presentations by Investigative Counsel, Comm. on the Judiciary, 105th Cong. 84 (1998), reprinted in Impeachment of President William Jefferson Clinton, The Evidentiary Record Pursuant to S. Res. 16, Volume XI, Transcript of December 10, 1998 Presentations by David Schippers and Abbe Lowell, Hearing Ser. No. 19, S. Doc. No. 106-3, at 84 (1999) [hereinafter Schippers-Lowell Presentations] (statement of David Schippers, Majority Chief Investigative Counsel).
65. See infra notes 228-29 and accompanying text.
66. See 18 U.S.C. §§ 1621, 1623 (1994).
67. See infra notes 232-235 and accompanying text.
68. Fed. R. Civ. P. 26(b)(1).
69. See Fed. R. Evid. 401.
70. See Fed. R. Evid. 801-806.
71. See Fed. R. Evid. 403.
72. See Fed. R. Evid. 404(a). Thus a man charged with bank robbery may have robbed other banks, but none of these other robberies may be introduced against him simply to show that he is a bank robber by disposition, or the sort of person who robs banks. The evidence has to be relevant to the case in some other way, for example, to show that a common distinctive modus operandi points to the same person as the author of the prior and present crimes, to negative a claim of innocent state of mind ("I didn't know the property was stolen"), or to prove a motive for the present crime or means to commit it. See Fed. R. Evid. 404(b).
73. See 18 U.S.C. § 1623(c)(1) (1994).
74. Kungys v. United States, 485 U.S. 759, 770 (1988).
75. 4 William Blackstone, Commentaries *138.
76. Starr's request to kick the issue out of the civil suit is in itself a comment on the value the OIC thought the evidence had to Paula Jones's case. The factual predicate to treating Clinton's deposition lies as serious offenses was that they thwarted justice in Jones's case. If that were really so, Starr would be doing more damage than Clinton himself had done to justice for Jones by depriving her of this supposedly valuable Lewinsky evidence. Starr argued that the greater importance of his criminal case justified sacrificing the evidence in the civil case. But the importance of the criminal offense was entirely dependent on the harm, if any, Clinton's lies could do to the plaintiffs in the civil case!
77. Jones v. Clinton, 993 F. Supp. 1217, 1222 (E.D. Ark. 1998).
78. See infra note 70 and accompanying text.
79. Schippers argued that if the President's testimony "were not material, the judge . . . would never have allowed it," and that "[t]he judge had clearly concluded that the subject matter was neither private nor irrelevant." See Schippers-Lowell Presentations, supra note 44, at 94.
80. See United States v. Holley, 942 F.2d 916, 923-24 (5th Cir. 1991).
81. See United States v. Adams, 870 F.2d 1140, 1146-48 (6th Cir. 1989); accord United States v. Clark, 918 F.2d 843, 846 (9th Cir. 1990).
82. See United States v. Kross, 14 F.3d 751, 754 (2d Cir. 1994).
83. See In re Sealed Case, 162 F.3d 670 (D.C. Cir. 1998).
84. See id. at 675.
85. The tiny sample of reported cases indicates that in at least two of the cases, the reason for the perjury prosecution was to retaliate against plaintiffs who brought civil rights suits against government agencies. See Clark, 918 F.2d at 844; Adams, 870 F.2d at 1141. A third case, Kross, 14 F.3d at 752, was a quasi-criminal proceeding, a civil forfeiture action brought against "Earth People's Park" in Vermont on the ground that the park was used to cultivate marijuana.
86. See Fed. R. Civ. P. 37 (precluding the offending party from using testimony or issues at trial, fining him for contempt, and, in extreme cases, dismissing the offending party's case or entering a default judgment against him).
87. See Jones v. Clinton, 36 F. Supp. 2d 1118, 1130-35 (E.D. Ark. 1999).
88. For a general discussion of proportionality in sanctions, see 8A Charles Alan Wright et al., Federal Practice and Procedure § 2284 (2d ed. 1994).
89. See Plaintiffs Amended Complaint at 4-5, Jones v. Clinton, 990 F. Supp. 657 (E.D. Ark. 1998) (No. LR-C-94-290).
90. See Fed. R. Evid. 415(a). This Rule was enacted as part of the Violence Against Women Act, 18 U.S.C. §§ 2261-2266 (1994). The drafters of this Rule never anticipated that it would be applied to civil sexual harassment cases, but it has come to be so applied. See Jane Harris Aiken, Sexual Character Evidence in Civil Actions: Refining the Propensity Rule, 1997 Wis. L. Rev. 1221, 1236-37.
91. This theory appears in their amended complaint. See Plaintiffs Amended Complaint at 14-15, 17-18, Jones (No. LR-C-94-290).
92. See id.
93. See Impeachment of President William Jefferson Clinton, The Evidentiary Record Pursuant to S. Res. 16, vol. III, pts. 1 and 2, Appendices to the Referral From Independent Counsel Kenneth W. Starr, H.R. Doc. No. 105-311, S. Doc. No. 106-3 (1999) pt. 1, at 61-63 [hereinafter Appendices].
94. See Jones, 990 F. Supp. at 669-76.
95. Jones's argument against summary judgment presented 700 pages of affidavits of various women, state troopers, and others to the effect that after sexual involvement with Clinton, some women were promised help with jobs in exchange for silence, while some were threatened if they did not keep silent. So this was evidence (the reliability of which is dubious, but quite impossible to assess) of favors for keeping silent, and threats of retaliation for not keeping silent about sexual involvement. But none of this had much of anything to do with Paula Jones. Even if her theory was that by rejecting Clinton's advances, she had deprived herself of leverage to extort favors, one could equally argue she had saved herself from being the victim of threats. Approximately 450 of the 700 pages of affidavits are located at 〈http://www. cnn.com/ALLPOLITICS/1998/resources/jones.case/documents.html.〉. A fair and thorough summary of this material appears in Eric Pooley, Kiss but Don't Tell, Time, Mar. 23, 1998, at 40.
96. The allegation most damaging to the President's reputation in this filing was the claim of Kathleen Willey, a former Clinton volunteer: that she asked Clinton for a job in 1993, was aggressively kissed and fondled by him, rejected him, and was given a paid job for keeping quiet about the incident. See Plaintiff's Opposition to Defendant Clinton's Motion for Summary Judgment at 78-81, Jones (No. LR-C-94-290). This rejection-followed-by-reward obviously does not fit the Jones plaintiffs' "pattern;" indeed if that were Clinton's customary practice, Paula Jones stood to reap job-related benefits from it. If Jones had gone to trial, and the trial court had found Willey's story credible, her testimony might possibly have been admissible under Fed. R. Evid. 415, the exception to the propensity rule for evidence of other sexual assaults. Willey's story, however, immediately became enmeshed in disputes about its credibility, which might have prevented its use at trial.
97. See Andrew Morton, Monica's Story 80 (1999).
98. Starr's referral to Congress found some Title VII implications in this conduct. Starr reported Lewinsky's view that she lost her job at the White House and was unable to return to it because of the affair. But he went on to suggest that the "extraordinary job assistance" was a "benefit to an ex-paramour" that "discriminated" against other employees. See Starr Report, supra note 11, at 205 n.460. It is, to put it mildly, a rather far-fetched extension of the sexual-harassment laws to imagine they cover an employer who, after a consensual affair with an employee, helps her to find another job somewhere else - because this would seem the best way to avoid any fallout from the affair at his own workplace. Anyway, this act of favoritism, if that is what it was, undercut the OIC's primary theory of its case that the job search was not a reward for sex but for false testimony and, as such, no more discriminatory on the basis of sex than favorable treatment for any other consideration, such as doing a favor for a constituent (the original motive for hiring Lewinsky as an intern).
99. I put these questions to my Evidence class in the Spring of 1998 in the hope that somebody could come up with a plausible non-propensity-based theory of the relevance of the Lewinsky evidence to the issues in Jones. Nobody could.
100. It is not generally an adequate objection to a discovery question that the party seeking discovery already has the answer from another source. See 8 Charles Alan Wright et al., Federal Practice and Procedure § 2014 (2d. ed. 1994). But it would be relevant to the objection if the party is asking the question largely for predatory reasons, to harass or embarrass, rather than out of any genuine need for the information. See id. § 2007.
101. Jones, 993 F. Supp. at 1219. Federal Rule of Evidence 608(b) generally prohibits the use of extrinsic evidence of other specific instances of a witness's conduct to impeach a witness's credibility. Judge Wright seems to be suggesting that if Clinton testified at the trial, were asked about the Lewinsky affair and denied it, no extrinsic evidence (such as Lewinsky's own testimony) could be used to contradict him.
102. Id. at 1222.
103. Id. at 1220.
104. Id. at 1222.
105. The judge had told the plaintiffs' lawyers she did not think much of their case, was becoming visibly irritated with their parade of "Jane Does," and said she was going to strictly limit evidence of "other women" at trial, if the case ever got to trial. See Bob Woodward, Shadow: Five Presidents and The Legacy of Watergate 368 (1999).
106. The OIC's referral to Congress suggested that if Clinton were afraid of adverse publicity from his answers in discovery in Jones, he could have asked the trial judge for a gag order. See Starr Report, supra note 11, at 5 n.22. This was disingenuous. Clinton and his lawyers knew perfectly well that Jones's lawyers would contrive to leak any damaging information in the record. The Jones lawyers did in fact use the occasion of their response to Clinton's motion for summary judgment to make public 700 pages of miscellaneous rumor and hearsay linking Clinton to various women. See supra note 75.
107. See infra Part I.E.
108. See generally H. Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U. Pa. L. Rev. 845 (1982) (proposing a statutory scheme for use of character evidence to prove conduct). Judge Wright exemplified this type of looseness when she said in a pre-trial conference: "and in fact, the Rules of Evidence in harassment cases, frequently court's [sic] permit other bad acts, other volatile acts, that kind of thing." Hearing Jan. 12, 1998, quoted in Starr Report, supra note 11, app. Tab C at 83.
109. See Plaintiffs First Amended Complaint at 3-5, Jones (No. LR-C-94-290).
110. See Answer of President William Jefferson Clinton to the First Amended Complaint at 1, Jones (No. LR-C-94-290).
111. I recently asked an experienced trial lawyer how common he thought party perjury is in civil suits; he cheerfully replied, "My experience is, that when there's money on the table, everybody lies."
112. See Plaintiffs First Amended Complaint at 8-9, Jones (No. LR-C-94-290).
113. See Letter from Kathleen Hawk Sawyer, Director, Federal Bureau of Prisons, to the Honorable Henry J. Hyde, Chairman, Committee on the Judiciary, U.S. House of Representatives 1 (Dec. 18, 1998), in Impeachment of President William Jefferson Clinton, The Evidentiary Record Pursuant to S. Res. 16, Volume XXIV, Letter dated December 18, 1998 from Kathleen H. Sawyer, Director, Federal Bureau of Prisons, to Chairman Henry J. Hyde regarding offenders currently in prison [sic] for various statutory offenses, S. Doc. 106-3, at 1 (1999).
114. The precise number is 131,680 according to the U.S. Bureau of Prisons' Weekly Report of July 30, 1999. See Telephone Interview with Scott Wolfson, spokesperson, U.S. Bureau of Prisons (Oct. 19, 1999).
115. In writing his own book about the Clinton-Lewinsky affair, Judge Richard Posner searched judicial databases since 1992 for civil cases involving sex or domestic relations, and found only six prosecutions for perjury in all, and only two where other crimes were not charged as well. See Posner, supra note 17, at 85.
116. See The Consequences of Perjury and Related Crimes: Hearing Before the Comm. on the Judiciary, 105th Cong. 6-57 (1998) (statements of Pam Parsons and Barbara Battalino), reprinted in Impeachment of President William Jefferson Clinton, The Evidentiary Record Pursuant to S. Res. 16, Volume XXI, Hearing of the Full Committee-"Consequences of Perjury and Related Crimes" (Dec. 1, 1998) Ser. No. 67, S. Doc. 106-3, at 6-57 (1999).
117. See The Consequences of Perjury and Related Crimes: Hearing Before the Comm. on the Judiciary, 105th Cong. 6-57 (1998) (statements of Pam Parsons and Barbara Battalino), reprinted in Impeachment of President William Jefferson Clinton, The Evidentiary Record Pursuant to S. Res. 16, Volume XXI, Hearing of the Full Committee-"Consequences of Perjury and Related Crimes" (Dec. 1, 1998) Ser. No. 67, S. Doc. 106-3, at 6-57 (1999).
118. See Edward Walsh & William Claiborne, Hearing on Perjury Shows Partisan Divide, Wash. Post, Dec. 2, 1998, at A18 (summarizing Battalino and Parsons cases).
119. See id.
120. See id. 100. Both also seem to me examples of prosecutorial excess: Dr. Battalino's having to face personal civil liability and dismissal and discipline by a state medical board, for instance, and Parsons's loss of her case and dismissal as a coach, would have been entirely adequate and appropriate responses to their misconduct.
121. In a case like Paula Jones's, for example, if Clinton's statements in discovery (a) really had been important to her case and (b) the plaintiff had other evidence tending to show that they were false, the plaintiff's case would have been helped, not hurt, by the deposition statements because they could have been effectively used to impeach his credibility at trial. In the actual case the deposition statements and Lewinsky's affidavit would most likely neither have helped nor hurt the case because questions about Lewinsky would have been ruled irrelevant.
122. Impeachment of President William Jefferson Clinton, The Evidentiary Record Pursuant to S. Res. 16, Volume XII, Transcript of December 10, 11, and 12, 1998 Debate on Articles of Impeachment and Censure Resolution, Hearing Ser. No. 18, S. Doc. No. 106-3, at 186-88 (1999) [hereinafter Debate] (statement of Chairman Henry Hyde).
123. See, e.g., John H. Langbein, Historical Foundations of the Law of Evidence: A View from the Ryder Sources, 96 Colum. L. Rev. 1168, 1184, 1200 (1996) (describing the movement from oath-based to cross-examination-based theories of truth-seeking).
124. See id. at 1200.
125. See id. at 1194; see also George Fisher, The Jury's Rise as Lie Detector, 107 Yale L.J. 575, 581 (1997) (chronicling the development of the jury as determiner of credibility in criminal trials).
126. "'The Presidency is more than an executive responsibility. It is the inspiring symbol of all that is highest in American purpose and ideals.'" Starr Report, supra note 11, at 7 (quoting Eugene Lyons, Herbert Hoover: A Biography 337 (1964) (quoting Hoover)); see also Debate, supra note 103, at 55 (statement of Lamar Smith, R-Tex.) (noting the President's special responsibility to take care to not commit any crime, particular one as serious as perjury).
127. See 145 Cong. Rec. S832-44 (daily ed. Jan. 21, 1999); 145 Cong. Rec. S810-30 (daily ed. Jan. 20, 1999); 145 Cong. Rec. S260-S279 (daily ed. Jan. 15, 1999).
128. U.S. Const. art. II, § 4.
129. He told the House Judiciary Committee: Before we ever seek an indictment, we engage not only, and I would hope any prosecutor's office would do that, in a very careful assessment of the facts, the elements of the offense and the like. We go through each of the elements. We look at the witnesses and the documentary evidence and the like, and then we have to satisfy, following Justice Department standards, whether it is more likely than not that a fair-minded jury would convict based on these facts, with the witnesses - and we take the witnesses as we find them - beyond a reasonable doubt? Starr Presentation, supra note 30, at 102. This is breathtaking. Starr seems to be saying that after many months of investigavtion and an extensive review of the facts in its referral, the OIC has still reached no conclusion about whether it could successfully prosecute a criminal case! That did not, however, prevent Starr from repeatedly asserting that his evidence clearly pointed to the President's guilt.
130. Nor is this argument new; it also arose during the Nixon impeachment hearings. See Staff of the Impeachment Inquiry, House Comm. on the Judiciary, 93d Cong., Report on Constitutional Grounds For Presidential Impeachment 25 (Comm. Print 1974), reprinted in Impeachment of President William Jefferson Clinton, The Evidentiary Record Pursuant to S. Res. 16, Volume XVII, "Constitutional Grounds for Presidential Impeachment: Modern Precedents" Comm. Print, Ser. No. 9, Nov. 1998, S. Doc. 106-3, at 59 (1999).
131. As the historian Henry Adams wrote of a different impeachment trial, that of Justice Samuel Chase in 1805: The Senate became confused between these two views [of impeachment as a legal or political proceeding] and never knew on which theory it acted . . . . [T]hough calling itself a court of justice, it would not follow strict rules of law. The result was a nondescript court, neither legal nor political, making law and voting misdemeanors for itself as it went, and stumbling from one inconsistency to another. Henry Adams, History of the United States of America During the Administrations of Thomas Jefferson 452 (Library of America ed., 1986).
132. Another argument sometimes made was that the President as Commander-in-Chief must set a high standard of exemplary behavior to the armed forces, and cannot be seen to be getting away with behavior that in the services might result in a court-martial. This is not very plausible. The military is a separate society, with its own special norms, rules and discipline. The services prohibit adultery, unlike the civilian law of almost all the states; and fraternization between ranks, which has no counterpart in civilian society. Among the military's gravest crimes is disobedience to orders.
133. See Debate, supra note 103, at 54-55, 185-86.
134. See Clinton v. Jones, 520 U.S. 681, 705-06 (1997).
135. See Starr Report, supra note 11, at 204-10.
136. See Starr Report, supra note 11, at 209.
137. The House resoundingly defeated this impeachment article by a 148-285 vote. See 144 Cong. Rec. H12042 (daily ed. Dec. 19, 1998).
138. See Neil A. Lewis, Espy Is Acquitted on Gifts Received While in Cabinet, N.Y. Times, Dec. 3, 1998, at A1.
139. See id. 121. To mention just a few: Lyndon Johnson's lies about enemy attacks in the Gulf of Tonkin and his persistent misrepresentations of the progress and costs of the Vietnam War; Richard Nixon's secret war in Cambodia and his cover-up of White House-sponsored burglaries, illegal wiretaps, and political use of federal agencies to punish enemies; Ronald Reagan's repeated insistence that he did not authorize the trading of arms to Iran for hostages; or George Bush's claims that he was out of the decision-making "loop" in the Iran-Contra affair. These were lies about serious matters of policy rather than personal indiscretions, designed to obstruct democratic decision-making and accountability.
140. See Starr Presentation, supra note 30, at 70.
141. Would it? If the decision had been left to the Attorney General, not an officer famous for fastidiously prudent judgment, almost anything could have
142. See Jones v. Clinton, 36 F. Supp. 2d 1118, 1130-35 (E.D. Ark. 1999).
143. The American public gave Starr highly unfavorable reviews throughout the Lewinsky investigation. Compare Deborah Tannen, 'Argument Culture' Fuels Clinton Scandal, USA Today, Feb. 5, 1998, at 13A (25%-42% favorable-unfavorable rating), with Richard Benedetto, New Poll Shows Clinton, Democrats Still Maintaining Popularity, USA Today, Sept. 16, 1998, at 12A (Starr's favorable-unfavorable rating at 32%-55%, in contrast to Clinton's 51% favorable, 47% unfavorable marks). In an interview with the ABC news show "20/20," Starr acknowledged that over the preceding months he had been compared with Saddam Hussein, Nero, and Torquemada. See ABC 20/20 (ABC television broadcast, Nov. 25, 1998), available in 1998 WL 5433808.
144. The American public gave Starr highly unfavorable reviews throughout the Lewinsky investigation. Compare Deborah Tannen, 'Argument Culture' Fuels Clinton Scandal, USA Today, Feb. 5, 1998, at 13A (25%-42% favorable-unfavorable rating), with Richard Benedetto, New Poll Shows Clinton, Democrats Still Maintaining Popularity, USA Today, Sept. 16, 1998, at 12A (Starr's favorable-unfavorable rating at 32%-55%, in contrast to Clinton's 51% favorable, 47% unfavorable marks). In an interview with the ABC news show "20/20," Starr acknowledged that over the preceding months he had been compared with Saddam Hussein, Nero, and Torquemada. See ABC 20/20 (ABC television broadcast, Nov. 25, 1998), available in 1998 WL 5433808.
145. Starr Report, supra note 11, at 7.
146. For further discussion of this point, see infra note 221 and accompanying text.
147. See, e.g., CBS News Poll, Aug. 6, 1998 ("Do you think Independent Counsel Kenneth Starr is mostly conducting an impartial investigation to find out if anything illegal occurred, or is mostly conducting a partisan investigation to damage Bill Clinton?" [Responses:] Impartial 31%; Partisan 60%; Don't know/No answer 9%).
148. This general view was echoed in the impeachment debates by several Congressmen, such as Thomas Barrett (D-Wis.). See Debate, supra note 103, at 172-73.
149. This is, of course, contested. Some reporters do claim that they have a right to ask the question and to receive a truthful answer, because they are asking the question as the agents of a public that is entitled to inquire into aspects of the moral character of a politician that are relevant to his fitness for public office. See infra note 152 and accompanying text for a discussion of this rationale.
150. An Independent Counsel in a different proceeding has identified political life generally as an arena where there is more-than-usual tolerance for lying: The career prosecutors and agents in my office . . . are uniformly of the belief that there is more lying, perjury, and obstructive behavior in the investigative stage of independent counsel cases than in ordinary white collar cases . . . . [O]ne explanation might be that [IC cases] depend on witnesses whose entire existence revolves around the swirl of politics - an environment where it is far too acceptable to put a glib, self-serving spin on responses to critical inquiry than to simply tell the truth.
151. Donald C. Smaltz, The Independent Counsel: A View From Inside, 86 Geo. L.J. 2307, 2347 (1998).
152. See, e.g., Wayne D. Brazil, Civil Discovery: Lawyers' Views of Its Effectiveness, Its Principal Problems and Abuses, 1980 Am. B. Found. Res. J. 787, 828-30, 834-38 (1980) (discussing evasion in discovery); Donald C. Langevoort, What Was Kaye Scholer Thinking?, 23 L. & Soc. Inquiry 297, 299-300 (1998) (discussing lawyers' tendency to take advantage of regulators' shortcomings).
153. See, e.g., Wayne D. Brazil, Civil Discovery: Lawyers' Views of Its Effectiveness, Its Principal Problems and Abuses, 1980 Am. B. Found. Res. J. 787, 828-30, 834-38 (1980) (discussing evasion in discovery); Donald C. Langevoort, What Was Kaye Scholer Thinking?, 23 L. & Soc. Inquiry 297, 299-300 (1998) (discussing lawyers' tendency to take advantage of regulators' shortcomings).
154. In immigration law, for example, a person who lies in order to gain immigration benefits is treated as a person of "bad moral character," while a person who lies to cover up an embarrassing secret in his past is not. See Kungys v. United States, 485 U.S. 759, 779-80 (1988).
155. On divorce perjury and its pervasiveness in New York, see Hubert J. O'Gorman, Lawyers and Matrimonial Cases: A Study of Informal Pressures in Private Professional Practice 25-35 (1963).
156. ABC 20/20 (ABC television broadcast, Nov. 25, 1998), available in 1998 WL 5433808).
157. Starr Presentation, supra note 30, at 18.
158. Id. at 82
159. Id. at 113.
160. See generally Sissela Bok, Lying: Moral Choice in Public and Private Life (1978); David Nyberg, The Varnished Truth: Truth Telling and Deceiving in Ordinary Life (1993). My thinking about privileges has been considerably sharpened and clarified by William H. Simon, Virtuous Lying: A Critique of Quasi-Categorical Moralism, 12 Geo. J. Legal Ethics 433, 458-61 (1999).
161. See generally Sissela Bok, Lying: Moral Choice in Public and Private Life (1978); David Nyberg, The Varnished Truth: Truth Telling and Deceiving in Ordinary Life (1993). My thinking about privileges has been considerably sharpened and clarified by William H. Simon, Virtuous Lying: A Critique of Quasi-Categorical Moralism, 12 Geo. J. Legal Ethics 433, 458-61 (1999).
162. See generally Sissela Bok, Lying: Moral Choice in Public and Private Life (1978); David Nyberg, The Varnished Truth: Truth Telling and Deceiving in Ordinary Life (1993). My thinking about privileges has been considerably sharpened and clarified by William H. Simon, Virtuous Lying: A Critique of Quasi-Categorical Moralism, 12 Geo. J. Legal Ethics 433, 458-61 (1999).
163. See Starr Presentation, supra note 30, at 150-51, 182. His answers may have been literally truthful because the questions were phrased in terms of whether the OIC had asked Lewinsky to wear a wire to entrap Clinton and Jordan. Starr responded that his staff had asked for her "cooperation" at a general level, from which one infers that she may have been asked if she would wear a wire, without mention of specific targets, or else perhaps targets other than Clinton and Jordan. The obvious purpose of the question was to find out what tactics the OIC was prepared to use in order to get something on Clinton.
164. See id. at 174-75.
165. See Debate, supra note 103, at 187.
166. U.S. House of Representatives Select Comm. to Investigate Covert Arms Transactions with Iran & U.S. Senate Select Comm. on Secret Military Assistance to Iran and the Nicaraguan Opposition, Report of the Congressional Comms. Investigating the Iran-Contra Affair, H.R. Rep. No. 100-433, S. Rep. No. 100-216, at 667 (1987) (supplemental views of Rep. Henry Hyde).
167. It mattered to the jury in Oliver North's trial as well; despite rulings and instructions from the trial judge that it was irrelevant to North's guilt that he might have been following President Reagan's orders, North's lawyer made his "loyal subordinate" role central to his defense, and the jury probably acquitted him of the serious charges for that reason. See Lawrence E. Walsh, Firewall: The Iran-Contra Conspiracy and Cover-Up 204-06 (1997) [hereinafter Walsh, Firewall].
168. See Application of John W. Whitehead and the Rutherford Institute for Fees and Costs Pursuant to Memorandum Opinion and Order Filed April 12, 1999, at 2, Jones v. Clinton, 990 F. Supp. 657 (E.D. Ark. 1998) (No. LR-C-94-290).
169. See Rhode, Conflicts of Commitment, supra note 26 (manuscript at 23).
170. Rhode gives a thorough and illuminating account of the conduct of Jones's Rutherford lawyers and their neglect of their client. See id. (manuscript at 20-27).
171. See Clinton v. Jones, 520 U.S. 681, 707-09 (1997).
172. California law, for example, recognizes such a right to sexual privacy. See Barrenda v. Superior Court, 76 Cal. Rptr. 2d 727 (App. 1998).
173. I would also point out that an intern in a politician's office is in critical respects very different from an employee in a meritocratic career hierarchy. Many interns are beneficiaries of favoritism from the outset, given minor patronage jobs handed out to relatives of friends or political allies or contributors, and casual and transient in their employment.
174. See Deborah L. Rhode, Moral Character: The Personal and the Political, 20 Loy. U. Chi. L.J. 1 (1988), for a helpful review and analysis of the debate.
175. Remarks by Whitewater Independent Counsel Kenneth Starr at Mecklenburg Bar Foundation, Charlotte, North Carolina, Fed. News Serv., June 1, 1998 (quoting Anothony T. Kronman, The Lost Lawyer (1993)). One cannot help wondering how far Starr gives effect to this high-minded principle when the clients are his own. Starr represents, among other clients, the Brown & Williamson tobacco company, whose lawyers in the past have proved to be virtuosi at the art of impeding the quest of regulators and plaintiffs for the truth about their operations. At one point Brown & Williamson went so far as to place all company research on the health effects of tobacco under the supervision of its general counsel's office in order to facilitate the claim that such research was protected by attorney-client privilege. See Stanton A. Glantz et al., The Cigarette Papers 235-338 (1996). Representing Brown & Williamson and General Motors in litigation, Starr has in fact asserted very broad claims of attorney-client privilege to protect client secrets from discovery. See Rhode, Conflicts of Commitment, supra note 26 (manuscript at 59) (discussing Starr's invocation of the attorney-client privilege while representing Brown & Williamson); Suzie Larsen & Keith Hammond, Starr Helped GM Cover Up Possible Perjury, The Mojo Wire, Feb. 27, 1998 (visited Oct. 15, 1999) 〈http:/bsd.mojones.com/newswire? gm?index.html〉 (discussing Starr's reliance upon attorney-client privilege while representing General Motors in 1994). Does Starr in private counseling urge open-handed disclosure upon these clients and others whom his firm, Kirkland & Ellis, defends in litigation and regulatory proceedings? If he does, he is a rare bird among corporate defense litigators.
176. Remarks by Whitewater Independent Counsel Kenneth Starr at Mecklenburg Bar Foundation, Charlotte, North Carolina, Fed. News Serv., June 1, 1998 (quoting Anothony T. Kronman, The Lost Lawyer (1993)). One cannot help wondering how far Starr gives effect to this high-minded principle when the clients are his own. Starr represents, among other clients, the Brown & Williamson tobacco company, whose lawyers in the past have proved to be virtuosi at the art of impeding the quest of regulators and plaintiffs for the truth about their operations. At one point Brown & Williamson went so far as to place all company research on the health effects of tobacco under the supervision of its general counsel's office in order to facilitate the claim that such research was protected by attorney-client privilege. See Stanton A. Glantz et al., The Cigarette Papers 235-338 (1996). Representing Brown & Williamson and General Motors in litigation, Starr has in fact asserted very broad claims of attorney-client privilege to protect client secrets from discovery. See Rhode, Conflicts of Commitment, supra note 26 (manuscript at 59) (discussing Starr's invocation of the attorney-client privilege while representing Brown & Williamson); Suzie Larsen & Keith Hammond, Starr Helped GM Cover Up Possible Perjury, The Mojo Wire, Feb. 27, 1998 (visited Oct. 15, 1999) 〈http:/bsd.mojones.com/newswire? gm?index.html〉 (discussing Starr's reliance upon attorney-client privilege while representing General Motors in 1994). Does Starr in private counseling urge open-handed disclosure upon these clients and others whom his firm, Kirkland & Ellis, defends in litigation and regulatory proceedings? If he does, he is a rare bird among corporate defense litigators.
177. Remarks by Whitewater Independent Counsel Kenneth Starr at Mecklenburg Bar Foundation, Charlotte, North Carolina, Fed. News Serv., June 1, 1998 (quoting Anothony T. Kronman, The Lost Lawyer (1993)). One cannot help wondering how far Starr gives effect to this high-minded principle when the clients are his own. Starr represents, among other clients, the Brown & Williamson tobacco company, whose lawyers in the past have proved to be virtuosi at the art of impeding the quest of regulators and plaintiffs for the truth about their operations. At one point Brown & Williamson went so far as to place all company research on the health effects of tobacco under the supervision of its general counsel's office in order to facilitate the claim that such research was protected by attorney-client privilege. See Stanton A. Glantz et al., The Cigarette Papers 235-338 (1996). Representing Brown & Williamson and General Motors in litigation, Starr has in fact asserted very broad claims of attorney-client privilege to protect client secrets from discovery. See Rhode, Conflicts of Commitment, supra note 26 (manuscript at 59) (discussing Starr's invocation of the attorney-client privilege while representing Brown & Williamson); Suzie Larsen & Keith Hammond, Starr Helped GM Cover Up Possible Perjury, The Mojo Wire, Feb. 27, 1998 (visited Oct. 15, 1999) 〈http:/bsd.mojones.com/newswire? gm?index.html〉 (discussing Starr's reliance upon attorney-client privilege while representing General Motors in 1994). Does Starr in private counseling urge open-handed disclosure upon these clients and others whom his firm, Kirkland & Ellis, defends in litigation and regulatory proceedings? If he does, he is a rare bird among corporate defense litigators.
178. See Editorial, Turn off the Soap Opera, St. Louis Post-Dispatch, Apr. 14, 1999, at B6.
179. See Jeffrey Rosen, Steele Trap, New Republic, Apr. 26-May 3, 1999, at 44.
180. See id. 156. The OIC's indictment of Steele included, revealingly, a count for perjury before the grand jury for claiming to have told the truth on "Larry King Live." See Jill Abramson, The Trial of the President: The Grand Jury; Starr Indicts an Ex-Friend of an Accuser of Clinton, N.Y. Times, Jan. 8, 1999, at A16.
181. See Robert Scheer, Starr is Dangerous, Denver Post, Mar. 6, 1998, at B11.
182. See John M. Broder & Don Van Natta, Jr., The Testing of a President: The Opponents; Clinton and Starr, A Mutual Admonition Society, N.Y. Times, Sept. 20, 1998, at A1.
183. See Starr Report, supra note 11, at 206-10.
184. In his referral, he created a separate heading under "abuse of power" for statements of Hillary Clinton and others attacking the allegations against Clinton as a "smear." See id. at 206. In his statement to Congress, Starr listed "the war against [our] office" as one of Clinton's tactics of diversion and delay of OIC investigation. Starr Presentation, supra note 30, at 27. He seemed particularly aggrieved by the President's public statements in support of Susan McDougal's going to jail for contempt rather than provide adverse information on Clinton to the OIC. See id, at 36.
185. Their performance reminded me of one of those high-speed chases in action movies, where a hundred police cars rampage through the streets scattering crowds and smashing rows of parked cars and shop windows, leaving whole blocks burning in order to get at the bad guys. I cannot be the only viewer who winces at scenes like this and wonders: who's going to pay for all that damage?
186. The "fruits" of these and other labors can be found in the Appendices, supra note 73, and especially the Impeachment of President William Jefferson Clinton, The Evidentiary Record Pursuant to S. Res. 16, vol. IV, pts. 1-3, Supplementary Materials to the Referral from Independent Counsel Kenneth W. Starr, H. Doc. 105-316, S. Doc. 106-3 (1999) [hereinafter Supplementary Materials]. The OIC lawyers did draw the line in one case. They did not interview or subpoena Chelsea Clinton to find out what she knew or to put pressure on her father. But they got to everyone else close to him.
187. See Woodward, supra note 85, at 353-55; Jane Mayer, The Webster Hubbell Investigation: Was It About Sex?, New Yorker, Aug. 9, 1999, at 26.
188. See Woodward, supra note 85, at 353-55; Jane Mayer, The Webster Hubbell Investigation: Was It About Sex?, New Yorker, Aug. 9, 1999, at 26.
189. An article in The Nation estimated these collateral costs at $23 million. See Robert Dreyfuss, Collateral Damage: The Personal Costs of Starr's Investigation, The Nation, July 27-Aug. 3, 1998, at 11.
190. See Starr Presentation, supra note 30, at 58-59.
191. See id. at 63.
192. See infra Part I.E. 168. See Michael Tonry, Malign Neglect: Race, Crime and Punishment in America 81-123 (1995); William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 Yale L.J. 1, 4 (1997).
193. See infra Part I.E. 168. See Michael Tonry, Malign Neglect: Race, Crime and Punishment in America 81-123 (1995); William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 Yale L.J. 1, 4 (1997).
194. See, e.g., David E. Rovella, Will he Escape this Time? Perjury Charge a Stretch, Say Nation's DAs, Nat'l L.J., Feb. 9, 1998, at A1 ("Many say that prosecuting the president for perjury in a civil case is unfair since such a charge against an ordinary citizen is . . . almost unheard of."). See generally Presentation on Behalf of the President: Hearing Before the Comm. on the Judiciary, 105th Cong. 283-322 (1998) (testimony of Thomas P. Sullivan, Richard J. Davis, Edward S.G. Dennis, Jr., Hon. William Weld, and Ronald Noble) (agreeing that prosecutions of witnesses for perjury and obstruction in civil cases, especially when unrelated to central issues in dispute, are rare and generally considered inappropriate use of prosecutorial resources), reprinted in Impeachment of President William Jefferson Clinton, The Evidentiary Record Pursuant to S. Res. 16, vol. X, Transcript of December 8 and 9, 1998, presentation on behalf of the President, including presentation of Charles F.C. Ruff, Hearing Ser. No. 68, 10 S. Doc. 106-3, at 283-322 [hereinafter Presentation on behalf of President]. Even Henry Ruth, the ex-Watergate prosecutor who became one of the strongest advocates for impeaching Clinton, acknowledged that "[p]robably no prosecutor would actually seek out perjury in civil matters, such as the Paula Jones suit." Henry Ruth, What Justice Department Guidelines Say About Perjury, Wall St. J., Jan. 18, 1999, at A19.
195. See, e.g., David E. Rovella, Will he Escape this Time? Perjury Charge a Stretch, Say Nation's DAs, Nat'l L.J., Feb. 9, 1998, at A1 ("Many say that prosecuting the president for perjury in a civil case is unfair since such a charge against an ordinary citizen is . . . almost unheard of."). See generally Presentation on Behalf of the President: Hearing Before the Comm. on the Judiciary, 105th Cong. 283-322 (1998) (testimony of Thomas P. Sullivan, Richard J. Davis, Edward S.G. Dennis, Jr., Hon. William Weld, and Ronald Noble) (agreeing that prosecutions of witnesses for perjury and obstruction in civil cases, especially when unrelated to central issues in dispute, are rare and generally considered inappropriate use of prosecutorial resources), reprinted in Impeachment of President William Jefferson Clinton, The Evidentiary Record Pursuant to S. Res. 16, vol. X, Transcript of December 8 and 9, 1998, presentation on behalf of the President, including presentation of Charles F.C. Ruff, Hearing Ser. No. 68, 10 S. Doc. 106-3, at 283-322 [hereinafter Presentation on behalf of President]. Even Henry Ruth, the ex-Watergate prosecutor who became one of the strongest advocates for impeaching Clinton, acknowledged that "[p]robably no prosecutor would actually seek out perjury in civil matters, such as the Paula Jones suit." Henry Ruth, What Justice Department Guidelines Say About Perjury, Wall St. J., Jan. 18, 1999, at A19.
196. See, e.g., David E. Rovella, Will he Escape this Time? Perjury Charge a Stretch, Say Nation's DAs, Nat'l L.J., Feb. 9, 1998, at A1 ("Many say that prosecuting the president for perjury in a civil case is unfair since such a charge against an ordinary citizen is . . . almost unheard of."). See generally Presentation on Behalf of the President: Hearing Before the Comm. on the Judiciary, 105th Cong. 283-322 (1998) (testimony of Thomas P. Sullivan, Richard J. Davis, Edward S.G. Dennis, Jr., Hon. William Weld, and Ronald Noble) (agreeing that prosecutions of witnesses for perjury and obstruction in civil cases, especially when unrelated to central issues in dispute, are rare and generally considered inappropriate use of prosecutorial resources), reprinted in Impeachment of President William Jefferson Clinton, The Evidentiary Record Pursuant to S. Res. 16, vol. X, Transcript of December 8 and 9, 1998, presentation on behalf of the President, including presentation of Charles F.C. Ruff, Hearing Ser. No. 68, 10 S. Doc. 106-3, at 283-322 [hereinafter Presentation on behalf of President]. Even Henry Ruth, the ex-Watergate prosecutor who became one of the strongest advocates for impeaching Clinton, acknowledged that "[p]robably no prosecutor would actually seek out perjury in civil matters, such as the Paula Jones suit." Henry Ruth, What Justice Department Guidelines Say About Perjury, Wall St. J., Jan. 18, 1999, at A19.
197. See Stanley I. Kutler, The Wars of Watergate: The Last Crisis of Richard Nixon 218-21, 242-320 (1990).
198. Starr Presentation, supra note 30, at 45.
199. See generally Theodore Draper, A Very Thin Line: The Iran-Contra Affairs (1991), for the most thorough and comprehensive account of the Iran-Contra Affair itself. Lawrence Walsh related the details of his OIC's investigation in Lawrence E. Walsh, Iran-Contra: The Final Report (1993) [hereinafter Walsh, Report], and in his memoir, Firewall, supra note 144.
200. See Miller, supra note 10, at A15.
201. The most vociferous critic was Senator Bob Dole. See Walsh, Firewall, supra note 144, at 467-89.
202. Id. at 501 (quoting Richard Perle, Assistant Secretary of Defense under Weinberger).
203. See The Pardons; Text of President Bush's Statement on the Pardon of Weinberger and Others, N.Y. Times, Dec. 24, 1992, at A22.
204. See Walsh, Firewall, supra note 144, at 230.
205. For a description of the major constitutional arguments, see Draper, supra note 172, at 580-98. Congressman Henry Hyde was among the most vocal defenders of unrestrictable Presidential prerogative.
206. This argument parallels the one I urged above that Clinton's sexual transgressions and public lies about them were best handled through the court of public opinion. If the public were really bothered by his acts, a groundswell of public revulsion would be likely to force his resignation, impeachment, electoral defeat, or just gestures of contrition sufficient to satisfy the public.
207. See Harold Hongju Koh, The National Security Constitution: Sharing Power After The Iran-Contra Affair 72, 93-95 (1990).
208. See Walsh, Firewall, supra note 144, at 228-32; Walsh, Report, supra note 172, at 365-72. President Reagan testified at Poindexter's trial: I was convinced that [the many things that were being done] were all being done within the law . . . . I repeat that anything that we could do to be of help [to the Contra effort], but it had to be within the confines of the law, the Boland amendment. And to this day, I assume that that is what [North] was doing. Walsh, Firewall, supra note 144, at 230.
209. See Walsh, Firewall, supra note 144, at 228-32; Walsh, Report, supra note 172, at 365-72. President Reagan testified at Poindexter's trial: I was convinced that [the many things that were being done] were all being done within the law . . . . I repeat that anything that we could do to be of help [to the Contra effort], but it had to be within the confines of the law, the Boland amendment. And to this day, I assume that that is what [North] was doing. Walsh, Firewall, supra note 144, at 230.
210. See Draper, supra note 172, at 13-15.
211. See id. at 569-70.
212. As Theodore Draper pointed out, this defense lifted the concept of "deniability" out of its usual context of remaining able to deny involvement in covert operations to foreign powers into that of being able to deny them to the American Secretaries of State and Defense, the American Congress, and the American Public. See id. at 559-63.
213. Reagan did not, at least in so many words, offer the Henry Hyde "noble lie in a noble cause" defense of the junta's operations, that their operations were justified as vital to save the hemisphere from Communism. For some time, however, he tried to give moral and political support to the junta by praising them as patriots, while refusing in legal proceedings to confirm their stories that he had actually authorized their conduct. See id. at 548 (describing President Reagan's phone call to North after North resigned, calling him "an American hero"); Walsh, Firewall, supra note 144, at 231 (discussing Reagan's testimony at Poindexter's trial that Reagan had not authorized diversion of funds to Contras).
214. See Koh, supra note 180, at 101-16.
215. Walsh, Report, supra note 172, at 355 (quoting Charles Hill notes on his meeting with Schultz, July 19, 1987).
216. For an account of these different investigations, see Walsh, Firewall, supra note 144, at 48-71.
217. See Walsh, Report, supra note 172, at xxiii-xxv (summarizing his OIC's prosecutions).
218. See Draper, supra note 172, at 499-552.
219. See Walsh, Firewall, supra note 144, at 115-37.
220. See Investigation Committee, supra note 143, at 20-22.
221. See Walsh, Firewall, supra note 144, at 68 (discussing the CIA's investigation of its own officials); Walsh, Report, supra note 172, at 441 (identifying problems the OIC encountered when dealing with the Defense Department).
222. See Walsh, Firewall, supra note 144, at 68 (discussing the CIA's investigation of its own officials); Walsh, Report, supra note 172, at 441 (identifying problems the OIC encountered when dealing with the Defense Department).
223. See Walsh, Report, supra note 172, at 441-42.
224. Secretary Weinberger, for example, was asked in 1987 for any notes he had made relevant to Iran-Contra; he turned over a few notes, and in an interview in 1990 denied he had any more. In fact, he had made very extensive notes, which he had ingeniously caused to be buried in the haystack of the unclassified section of his papers at the Library of Congress. The content of these notes contradicted on important points some of the testimony he had previously given. See id. at 412-13.
225. See Walsh, Firewall, supra note 144, at 528-29.
226. See generally John Dugard, Reconciliation and Justice: The South African Experience, 8 Transnat'l L. & Contemp. Probs. 277, 277-311 (1998) (describing rationale for and proceedings conducted by South African Truth and Reconciliation Commission).
227. Walsh, Report, supra note 172, at 413.
228. See Draper, supra note 172, at 259.
229. See, e.g., Walsh, Report, supra note 172, at 145-46 (Paul Thompson), 232 (Robert Gates), 372-73 (George Shultz, Charles Hill, Nicholas Platt), 436 (Richard L. Armitage), 454-56, 472 (President Reagan), 551-53 (Edward Meese III), 502-03 (Donald P. Gregg, Samuel Watson).
230. See William J. Bennett, The Death of Outrage: Bill Clinton and the Assault on American Ideals (1998), for a (relatively) carefully argued expression of this point of view.
231. See id. at 42-51.
232. See 144 Cong. Rec. H12,037 (daily ed. Dec. 19, 1998) (statement of Rep. Barr); 144 Cong. Rec. H12,032 (daily ed. Dec. 19, 1998) (statement of Rep. Canady); 144 Cong. Rec. H11,788 (daily ed. Dec. 18, 1998) (statement of Rep. Buyer).
233. To cite one of many indications of the majority view, following the House's vote on impeachment, Clinton's approval rating climbed to an astonishing 73% in a USA Today/CNN/Gallup poll, a personal high for the president. See Richard Benedetto, Public Likes Clinton More, GOP Less in Wake of Vote, USA Today, Dec. 21, 1998, at 6A.
234. See, e.g., Factors that have kept Clinton alive, USA Today, Feb. 12, 1999, at 2A (discussing poll results that found that 68% of women opposed impeaching Clinton and removing him from office, versus 63% of the population at large).
235. When polled, seven out of ten Americans said they did not want the Starr Report to divulge intrinsically private details of Clinton's sex life to the public. See Richard Benedetto, Public Emotions: A 'Psychotic Salad' on Starr's Report, USA Today, Sept. 11, 1998, at 3A.
236. For example, the Speaker in office at the beginning of the scandal and the Speaker-Elect who briefly replaced him had their own need for discretion.
237. See Ronald Dworkin, Taking Rights Seriously 14-80 (1977), for a critical account.
238. See Eugene Bardach & Robert A. Kagan, Going by the Book: The Problem of Regulatory Unreasonableness 143 (1982) (describing this bureaucratic pathology in operation).
239. See generally Ronald Dworkin, Law's Empire 126 (1986), William Simon, The Practice of Justice (1998), and Cass R. Sunstein, Legal Reasoning and Political Conflict 121-35, 148-66 (1996), for powerful recent critiques of the model of law as (exclusively) rules.
240. See generally Ronald Dworkin, Law's Empire 126 (1986), William Simon, The Practice of Justice (1998), and Cass R. Sunstein, Legal Reasoning and Political Conflict 121-35, 148-66 (1996), for powerful recent critiques of the model of law as (exclusively) rules.
241. See generally Ronald Dworkin, Law's Empire 126 (1986), William Simon, The Practice of Justice (1998), and Cass R. Sunstein, Legal Reasoning and Political Conflict 121-35, 148-66 (1996), for powerful recent critiques of the model of law as (exclusively) rules.
242. See Robert M. Cover, Justice Accused: Antislavery and the Judicial Process passim (1975).
243. See, e.g., Mark Osiel, Dialogue with Dictators: Judicial Resistance in Argentina and Brazil, 20 L. & Soc. Inquiry 481, 481-88 (1995) (identifying the judge's role in military and authoritarian governments).
244. Cf. Eric Pooley & Michael Weisskopf, As Starr Sees It, Time, Dec. 28, 1998, at 83, 92 (noting that Starr "declared that 'there's no room for white lies' in court").
245. They were also accused of violating real rule-books. Federal Rule of Criminal Procedure 6(e)(2) forbids leaks of secret grand jury material to the press. The OIC first claimed it had leaked nothing, then admitted leaks for the purpose of countering "misinformation," and finally fired a senior deputy for leaking.
246. See infra Part II.D.
247. See Starr Presentation, supra note 30, at 44.
248. See, e.g., Editorial, Prosecutor and Perspective, Oregonian, June 7, 1998, at E4 (arguing that Starr has let his zeal for conviction blind him to the role of his office). Some observers may have drawn their inference of OIC hostility from admissions such as those made by Starr deputy W. Hickman Ewing, Jr., who, when called as a witness in Susan McDougal's trial, testified that he openly questioned the truthfulness of the Clintons' responses to questions posed by Whitewater investigators, though he denied allegations that he had called the President and First Lady "crooks and liars." See Pete Yost, Starr Aide Tells of Questioning Clintons' Credibility, Wash. Post, Mar. 19, 1999, at A10.
249. See, e.g., Editorial, Prosecutor and Perspective, Oregonian, June 7, 1998, at E4 (arguing that Starr has let his zeal for conviction blind him to the role of his office). Some observers may have drawn their inference of OIC hostility from admissions such as those made by Starr deputy W. Hickman Ewing, Jr., who, when called as a witness in Susan McDougal's trial, testified that he openly questioned the truthfulness of the Clintons' responses to questions posed by Whitewater investigators, though he denied allegations that he had called the President and First Lady "crooks and liars." See Pete Yost, Starr Aide Tells of Questioning Clintons' Credibility, Wash. Post, Mar. 19, 1999, at A10.
250. Morrison v. Olson, 487 U.S. 654, 679 (1988).
251. See Order of the Division for the Purpose of Appointing Independent Counsels, Jan. 16, 1998, reprinted in Appendices, supra note 73, at 6-7.
252. Id. 221. As if to underscore how peripheral the Jordan-Hubbell connection had become to its new focus on Lewinsky, Starr's referral, after mentioning it as one of the bases for requesting expanded jurisdiction, returns just once to the subject, in a section alleging that Clinton lied in his Jones deposition when he said he did not recall whether Jordan had discussed with Lewinsky her involvement in the Jones case. Starr speculates: At the time of his deposition, moreover, the President was aware of the potential problems in admitting any possible link between those two subjects [Jordan's job search for Lewinsky and her Jones testimony]. A criminal investigation and substantial public attention had focused in 1997 on job assistance and payments made to Webster Hubbell in 1994. The jobs and money paid to Mr. Hubbell by friends and contributors to the President had raised serious questions about whether such assistance was designed to influence Mr. Hubbell's testimony about Madison-related matters. Some of Mr. Hubbell's jobs, moreover, had been arranged by Vernon Jordan, which was likely a further deterrent to the President raising both Ms. Lewinsky's job and her affidavit in connection with Vernon Jordan. Starr Report, supra note 11, at 189. This is a fantastic piece of embroidery. It begins by assuming as true Starr's stated reasons for his investigation of Jordan about Lewinsky, that Jordan had helped Hubbell in order to influence his testimony. It then attributes Clinton's claim not to remember talking about Lewinsky's Jones testimony with Jordan to Clinton's fear that this - so far, wholly suppositious - "connection" with Hubbell might be revealed.
253. See Starr Report, supra note 11, at 146-47.
254. Presentation on behalf of President, supra note 169, at 238-39. (Ben-Veniste responding to questioning by Rep. Jerrold Nadler).
255. 28 U.S.C. § 595(c) (1994) (expired 1999).
256. The timing of the referral is another matter, however. Starr's timing raised a lot of eyebrows, with good reason. His OIC, recall, was called into being to continue special counsel Robert Fiske's inquiry into Whitewater. As time went on Starr's team gradually acquired new things to look into: Vince Foster's suicide, the firing of the White House travel staff, the request from the White House for FBI files on political opponents. All of these were matters that potentially implicated the President. So one might have thought that an IC considering when to report to Congress would report on all the matters at once; for if more than one inquiry yielded evidence of impeachable conduct, the House would want to consider all the allegations at the same time. The IC could not expect the House to gear itself up for one impeachment inquiry, and then, months or years later, undertake another. Yet Starr (who had already reported on the Foster matter, and reported what every sane person already believed, and Robert Fiske had also concluded three years earlier, that Foster committed suicide: see David Jackson, Whitewater Counsel Starr Declares Foster Death a Suicide, Dallas Morning News, July 16, 1997, at 3A) presented only one piece of business to the Congress, the Lewinsky matter, and did so on September 9, 1998, two months before the mid-term elections. After the elections, he casually informed the House Judiciary Committee that his OIC had not found any involvement by the President in the Travel Office and FBI files affairs. See Starr Presentation, supra note 30, at 38. He dropped some dark hints about possible wrongdoing by the Clintons in the Whitewater matter, but said his investigation was ongoing, and refused to rule out further impeachment referrals. The Democrats on the House Judiciary Committee were understandably furious about this manner of proceeding. Why had Starr not announced that he had cleared the upper levels of the White House in the travel and FBI affairs before the election? Why was he dropping innuendoes about misdeeds in Whitewater in advance of the conclusion of his investigation and report? Why the rush to send the referral on Lewinsky before the election rather than waiting until all the inquiries were complete? There is no smoking gun here, but one would not have to be a paranoid to infer that the OIC was trying to inflict the maximum possible political damage before the election.
257. It was his testimony that prompted the resignation of his ethics advisor, Samuel Dash. See Woodward, supra note 85, at 481.
258. Some of the more salacious details may be found in the Starr Report, supra note 11, at 28-36, 39-40, 44-47, 49-50, 57-60.
259. In a September 1998 USA Today/CNN/Gallup poll, 71% of respondents said that the Starr Report's sexual details should not be released to the public. See Poll: Most Prefer Censure, USA Today, Sept. 11, 1998, at 3A.
260. Many practitioners and legal reporters noted these shortcomings upon the report's release. See Karen Alexander, Abuse of Power: The Weak Link, Legal Times, Sept. 21, 1998, at 16 (abuse of power charge); Diedre Shesgreen, Perjury's the Strong Count. Or Is It?, Legal Times, Sept. 21, 1998, at 16 (discussing the perjury charges); Sam Skolnick, Obstruction Charges: A Mixed Bag, Legal Times, Sept. 21, 1998, at 16 (obstruction charges); The Law and the facts: Weighing Starr's Report, Legal Times, Sept. 14, 1998, at 12 (surveying attorneys' comments on report).
261. Many practitioners and legal reporters noted these shortcomings upon the report's release. See Karen Alexander, Abuse of Power: The Weak Link, Legal Times, Sept. 21, 1998, at 16 (abuse of power charge); Diedre Shesgreen, Perjury's the Strong Count. Or Is It?, Legal Times, Sept. 21, 1998, at 16 (discussing the perjury charges); Sam Skolnick, Obstruction Charges: A Mixed Bag, Legal Times, Sept. 21, 1998, at 16 (obstruction charges); The Law and the facts: Weighing Starr's Report, Legal Times, Sept. 14, 1998, at 12 (surveying attorneys' comments on report).
262. Many practitioners and legal reporters noted these shortcomings upon the report's release. See Karen Alexander, Abuse of Power: The Weak Link, Legal Times, Sept. 21, 1998, at 16 (abuse of power charge); Diedre Shesgreen, Perjury's the Strong Count. Or Is It?, Legal Times, Sept. 21, 1998, at 16 (discussing the perjury charges); Sam Skolnick, Obstruction Charges: A Mixed Bag, Legal Times, Sept. 21, 1998, at 16 (obstruction charges); The Law and the facts: Weighing Starr's Report, Legal Times, Sept. 14, 1998, at 12 (surveying attorneys' comments on report).
263. Many practitioners and legal reporters noted these shortcomings upon the report's release. See Karen Alexander, Abuse of Power: The Weak Link, Legal Times, Sept. 21, 1998, at 16 (abuse of power charge); Diedre Shesgreen, Perjury's the Strong Count. Or Is It?, Legal Times, Sept. 21, 1998, at 16 (discussing the perjury charges); Sam Skolnick, Obstruction Charges: A Mixed Bag, Legal Times, Sept. 21, 1998, at 16 (obstruction charges); The Law and the facts: Weighing Starr's Report, Legal Times, Sept. 14, 1998, at 12 (surveying attorneys' comments on report).
264. See Starr Report, supra note 11 at 131, 145, 151, 160. In his committee statement, Starr abandoned this caution and freely asserts that the President committed perjury.
265. Unless you count his response to a question from Rep. Bill McCollum, [W]hen the President lied under oath as you have described it in that Paula Jones case . . . was materiality present? Mr. Starr: Materiality is not affected. It is a totally bogus argument to suggest that because the lawsuit is eventually settled or dismissed that an act, let's call it perjury, we have said, you know, a false statement under oath, that is the way we presented it to you. That is simply and utterably and demonstrably wrong as a matter of law. Starr Presentation, supra note 30, at 89. I would call this a tantrum rather than an analysis, and note that it responds to a question that has not been asked (Does settlement or dismissal render witness testimony immaterial for purposes of the perjury statutes?) and avoids the actual question: was Clinton's testimony material? The correct and candid answer would have had to have been something like, "Materiality might or might not be technically present. It depends on how materiality is defined, which is a contested point in the law of perjury; and it depends on how you analyze the relevance of the Lewinsky evidence to the sexual-harassment claim."
266. See Starr Report, supra note 11, at 6; Starr Presentation, supra note 30, at 18-19.
267. The OIC does address the issue of materiality in the abstract in an obscure appendix to Starr's report to Congress. See Appendices, supra note 73, at 275-95. There the OIC slants the analysis to favor the Fifth Circuit's equation of materiality with discoverability, but acknowledges that the law is unsettled and that some courts require proof of potential influence on the outcome of the underlying case. Id. at 282-86; see also supra notes 60-62 and accompanying text. It then, however, goes on to analyze Clinton's deposition statements in Jones as if the trial judge's rulings that Clinton could be asked about Lewinsky were conclusive on the issue of their materiality. The OIC nowhere produces any analysis of its own of the potential relevance of the evidence to the case, much less any analysis under the more exacting standard of materiality requiring some showing of potential effect on the outcome. Instead the OIC misrepresents Judge Wright as having "concluded that Lewinsky-related evidence might be capable of influencing the ultimate decision in the lawsuit." Appendices, supra note 73, pt. I, at 293. But all Judge Wright said was that "evidence of the Lewinsky matter might have been relevant to plaintiff's case" - meaning, in context, nothing more than minimal logical relevance. Jones v. Clinton, 993 F. Supp. 1217, 1222 (E.D. Ark. 1998). All of the trial judge's comments in the hearing before the deposition was taken suggested that any evidence that did not back up the plaintiff's "hostile environment," "quid-pro-quo" or "pattern-of-sexual-assault" theories would be excluded at trial. Her order excluding the Lewinsky evidence from the case concluded that even if it did fit into the "patterns" hypothesized by the plaintiffs it would still be too remote from the plaintiff's own situation to be anything but collateral character evidence and would therefore be excluded under rules 404(a) and 403 of the Federal Rules of Evidence. See supra notes 81-84 and accompanying text.
268. The closest the OIC came to something that might look like actual obstruction or witness tampering was Clinton's desperate rehearsal of his cover story with his secretary, Betty Currie ("You were always there when she was there, right?" "We were never really alone." "Monica came on to me, and I never touched her, right?"), but there was nothing to show Currie was intimidated or even influenced by this rehearsal, or for that matter that she was a likely witness in any proceeding. The OIC also said Clinton obstructed justice when Currie retrieved and hid the gifts he gave Lewinsky, but its evidence suggested that this may have been Lewinsky's idea, and it had no evidence that Clinton had instigated it. The OIC's other obstruction charges, that Clinton had lied to his aides about the affair, and encouraged them to repeat his lies to grand juries, were never more than frivolous: these "witnesses" had no first hand knowledge of any facts other than the stories Clinton was telling them, which were the same stories he was telling his wife and the public.
269. See Starr Presentation, supra note 30, at 18.
270. See Presentation on behalf of President, supra note 169, at 283-322.
271. See Appendices, supra note 73, at 271.
272. See Starr Report, supra note 11, at 129-30.
273. See Starr Presentation, supra note 30, at 16-17.
274. See, e.g., Starr Presentation, supra note 30, at 27-28 (quoting Sens. Hatch and Moynihan and Reps. Meehan and Schumer).
275. See Starr Presentation, supra note 30, at 30.
276. Some of this speculation may have been bolstered by 20/20's profile of Starr, in which Robert Bittman, one of Starr's deputies, called the Independent Counsel "ignorant" with regard to prosecutorial tactics. See ABC 20/20 (ABC television broadcast, Nov. 25, 1998), available in 1998 WL 5433808.
277. See Woodward, supra note 85, at 453, 503. Woodward's information about these decisions evidently comes from OIC staff members anxious to distance themselves from the OIC's most egregiously dubious conduct, so its reliability is not foolproof.
278. Some extreme variants of his opinion are discussed in Morton M. Kondracke, Liberal Intellectuals Go Over the Top on Clinton Scandal, Roll Call, Oct. 19, 1998, at 6.
279. See Posner, supra note 17.
280. The book is also, alas, disfigured by gratuitously nasty and often unwarranted swipes at rival public intellectuals, especially liberal academics, the favorite target of much of Posner's recent work. True, academics are not generally at their best when commenting on current events; they tend to be drawn as much as anyone else into polarizing polemics and to exaggerate and caricature to score political points. Nonetheless in this controversy there was no shortage of academics with sensible and illuminating things to say: just for a short list, Bruce Ackerman, Akhil Amar, Samuel H. Beer, Gerard Lynch, Jeffrey Rosen, Arthur M. Schlesinger, Jr., Cass Sunstein, and H. Richard Uviller.
281. See Posner, supra note 17, at 133-69.
282. See id. at 157-59.
283. Id. at 161.
284. See id. at 160-69.
285. See id. at 227.
286. See id. at 224.
287. See id. at 13, 149. "It was important to the nation's welfare neither that Paula Jones be able to press her marginal sexual harassment case . . . nor that Clinton's affair with Monica Lewinsky be made public." Id. at 149.
288. See id. at 85.
289. Id. at 49-50.
290. True, the later episode shows he is a man who likes sex, specifically oral sex. That is not what you would call a markedly distinguishing characteristic.
291. Id. at 84.
292. Id.
293. See id. at 146.
294. Id.
295. Id. at 147.
296. Id. at 86.
297. Id. at 85 (footnote omitted).
298. Id. at 81.
299. Id.
300. Id. at 88 (citations omitted).
301. Id. at 91. Posner wonders why anyone "summoned before the grand jury who was not a target or even a subject of the Independent Counsel's investigation bothered to hire a lawyer," and speculates the reason may have been that Clinton wanted them to have lawyers to protect not themselves but him. Id. at 72-73 (footnote omitted). But nobody who had observed the Starr OIC's re-enactment of General Sherman's March through Georgia in Arkansas and later in the White House could have failed to notice that the OIC had an unpleasant habit of turning witnesses into targets or subjects when not told what it wanted to hear. 268. "[T]ypical hardball prosecutorial methods," Posner calls them with evident relish. See id. at 69.
302. Id. at 69-70.
303. Id. at 70.
304. Posner mentions that the IC could have warned Clinton before his deposition, and that by not doing so it "may have been trying to 'set up' the President to commit and suborn perjury; and it may have been doing this in direct or indirect cooperation with Paula Jones's lawyers." Id. at 78. He adds: "[T]o conduct a sting operation against the President of the United States, in concert with the President's partisan enemies, is certainly questionable as a matter of sound enforcement policy." Id. Posner goes on to say that such a sting is not a "legal defense against prosecution," and of course he's right about that, though juries may well consider it an exculpatory factor if they become aware of it.
305. See id. at 79.
306. Id. at 87.