WASHINGTON — In the nation's capital, where standard wisdom rumbles down every marble corridor and pours out over every broadcast network, C. Boyden Gray listens to a different beat.
Aloof, aristocratic and an avowed libertarian, Gray, who built his reputation during four years as White House counsel for President George Bush, clearly takes pride in coming to conclusions, both legal and political, independent of other Republicans. For that reason, his views on the issues raised by independent counsel Kenneth W. Starr's time-consuming investigation of President Bill Clinton have come to be valued by the press and other lawyers.
Gray is no newcomer to the topic. Indeed, he is among a small handful of men and women who have hands-on White House experience with important constitutional issues, such as executive privilege. As the top legal advisor to Bush as president and vice president, Gray dealt frequently with the demands placed on his boss by the Iran-Contra investigation headed by independent counsel Lawrence E. Walsh. In the aftermath of the probe, felony convictions against two Reagan White House aides were overturned on appeal, and Bush pardoned seven other administration officials who were either convicted or charged.
In an interview, Gray, his 6-foot-6 frame slouched in an office chair, is characteristically thoughtful, precise and unsmiling. While he holds the independent- counsel statute in low regard, he leaves no doubt that he views Clinton as an unscrupulous leader who has demeaned the office of the presidency.
An heir to the R.J. Reynolds tobacco fortune, Gray, 55, grew up in the white-columned presidential mansion on the campus of the University of North Carolina, where his father was president. He received an undergraduate degree from Harvard, a law degree from North Carolina, then clerked for U.S. Supreme Court Chief Justice Earl Warren. He is divorced and the father of a teenage daughter.
Question: Does a grant of immunity for Monica Lewinsky mean that the president is about to be indicted?
Answer: It means difficulty for the president. But, ultimately, I believe that a sitting president cannot be indicted and tried prior to impeachment and conviction by the Senate. But he does have to respond to an independent counsel, even if the end result is a report to Congress, and not an indictment.
Q: If a president cannot be indicted, was it proper for Starr to subpoena him?
A: The president has legitimate arguments for resisting a subpoena based on the fact that he cannot be indicted. But it's by no means certain he would win those [arguments] in court. If he lost them, he would have lost a great deal for the presidency. He's already lost a great deal of bargaining leverage for the presidency on attorney-client privilege, on the Secret Service, on executive privilege.
The president has previously agreed to testify before Starr in Whitewater--taped depositions in the White House. Prior presidents have agreed . . . . So I think this president has got to do the same.
Q: Does it appear to you that Starr is building a case of obstruction of justice against Clinton?
A: I agree that is what he's looking for. A report that documents nothing more than adultery is not going to trigger an impeachment hearing. I think he is going to get more from Monica Lewinsky and he's gotten more from the Secret Service that will go beyond just adultery, that go into perjury and obstruction.
Sara Fritz is managing editor of Congressional Quarterly.
Q: Because Starr's lengthy investigation has caused difficulties for Democrats, some Republicans who once opposed the independent counsel statute are now in favor of it. Are you one of them?
A: I think it's a statute that needs to be terminated.
There is a famous Justice [Robert H.] Jackson quote, I think he may have been attorney general when he gave it, but it's about converting a normal criminal inquiry, which is to find the perpetrator of a crime, into looking at an individual and trying to find the crime that that person committed. And that's what the independent counsel statute does. It doesn't identify a dead body or a broken-into store or a stolen purse and say, all right let's go out and find who did it; it identifies an individual and asks what did that person do wrong? And that's the ultimate danger of the independent counsel statute. It doesn't work like a criminal investigation and that's why it's bad.
Bear in mind that there have been periods in our history--Teapot Dome is one; Iran-Contra is another, and Watergate is the classic paradigm, where Archibald Cox was appointed with great independence and there wasn't an independent counsel statute--where the political system is perfectly capable of creating on an ad hoc basis, when needed, an investigative authority where independence is assured. But you don't have this crazy statute that sits around waiting to be misused. So the political system can deal with these situations. It has in the past.