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Beyond the Impeachment Spectacle

November 22, 1998|Stephen Gillers | Stephen Gillers, professor of law at New York University, teaches legal ethics and evidence

NEW YORK — 'Full of sound and fury, signifying nothing" is how Macbeth described life shortly before he met his death at the end of William Shakespeare's tragedy. But he might just as well have been describing Thursday's 12-hour interrogation of independent counsel Kenneth W. Starr before the House Judiciary Committee. That this, the most serious of all legislative work, should be turned into a sporting event, with cheering for Rep. Barney Frank (D-Mass.) or Rep. Bob Barr (R-Ga.), depending on which side you're on, is truly sad. It would be easier to understand former Watergate counsel Sam Dash's decision to resign as Starr's ethics advisor if he said he was fed up with this congressional spectacle than for his stated reason: Starr's decision to testify.

Press stories Friday aggravated the problem by suggesting that David E. Kendall, President Bill Clinton's lawyer, scored points by managing to ruffle Starr, as if witness demeanor, not facts, was the important thing. The question is whether Clinton's conduct deserves impeachment or other sanction, not whether Kendall could make Starr raise his voice. With the exception of Rep. Charles E. Schumer (D-N.Y.), committee Democrats asked virtually no questions about the president's conduct.

Well, of course they didn't, silly. How could they? "Facts are stubborn things," said John Adams, while defending British soldiers in the Boston Massacre trials, "and whatever may be our wishes, our inclinations or the dictates of our passions, they cannot alter the state of facts and evidence." Starr could have walked into the hearing with a lampshade on his head. It would not have changed the facts: Clinton is hoist on his own testimony. So, what else could a loyal Democrat do but attack the prosecutor and stay miles away from Clinton's words and deeds?

A lot more. Start with the fact that impeachment is not going to happen. We all know that. If impeachment were a real risk, perhaps we could understand the Democrats' cartoonish efforts to change the subject. But since the president will complete his term, the Democrats were free to behave like statesmen. It can be done without sounding like a Republican, and in five minutes, too. Here's how:

"Judge Starr, like my fellow Democrats, I find some of your tactics troubling. Last January, when you asked the court to expand your jurisdiction to include Mr. Clinton's conduct in the Paula Corbin Jones case, you did not tell the attorney general or the court that you had personally given advice to Mr. Clinton's opponent in that very case. In other words, after having taken the plaintiff's side, you now wanted to be appointed to investigate the defendant.

"Today, you tell us you did not, at the time, even inquire whether your law firm, Kirkland & Ellis, was handling any matters that would have conflicted you out of accepting the enhanced jurisdiction you requested. And now we learn at least one of your partners may have been handling just such a conflicting matter.

"Further, Judge Starr, your reasons for not honoring Monica S. Lewinsky's request to talk to her lawyer when your assistants questioned her at the Ritz-Carlton Hotel are specious. Ms. Lewinsky had a constitutional right to speak with her lawyer. Equally important, your office had an ethical obligation not to speak with Ms. Lewinsky without her lawyer's permission. The fact that she did not give you any information that day, and ultimately decided to change lawyers, does not excuse this misconduct.

"Now, despite these and other problems with the manner in which you conducted your investigation, I must disagree with my fellow Democrats in certain fundamental ways. First, it is inadvisable and even dangerous to suggest by our questioning that this inquiry is properly about you, Judge Starr, and not the president's conduct. The rule of law is at issue here, as is the absolute need for this Congress to make it clear to every American citizen that none of your mistakes can excuse the president's criminal conduct. That conduct is amply proved, mostly by the president's own words. None of my colleagues can deny it and prefer to ignore it. But we Democrats betray the rule of law and our own constituents if, by the questions we ask you, we suggest otherwise.

"Nor should our recent victories in the House elections embolden us to think the president's conduct has somehow been expunged at the ballot box. It has not. The president shamed himself and weakened his great office. That was true last January, when he was deposed in a sexual-harassment case against him, and it was true in August, when he testified before the grand jury. It will always be true, regardless of your errors, Judge Starr, serious though they are. Furthermore, we in Congress will not be forgiven if we seek to recast your investigation as a political contest--Clinton vs. Starr--in which popularity is used to 'prove' exoneration. So recast, Judge Starr, you will lose everywhere but in our courts. But Americans will lose more.

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