OT
To All:
Thought this was quite interesting. Comments?
Abuse of Power
By ANTHONY LEWIS for the New York Times
BOSTON -- Ten years ago Justice Antonin Scalia warned of the potential for abuse of power by an unaccountable independent counsel. It was a dissent, and too few of us paid attention to his warning. Now the potential is reality. Look at what Kenneth Starr has done in his pursuit of the Clinton sex allegations.
1. Last week Mr. Starr subpoenaed Robert Weiner of Howard County, Md., to appear before his grand jury in Washington. Why Mr. Weiner? Because he had said that his local prosecutor should prosecute Linda Tripp for taping telephone conversations with Monica Lewinsky without her permission. That is a felony under Maryland law.
Mr. Starr's excuse for that subpoena was that Mr. Weiner works as a press spokesman in the White House drug policy office. No one had told Mr. Weiner to do what he did. But in any event it was his right as a citizen to call attention to a violation of law -- indeed his "obligation," the Supreme Court has said. For a prosecutor to haul someone before a grand jury on so thin a ground was an alarming abuse of power.
2. Mr. Starr has subpoenaed Francis D. Carter, who was Ms. Lewinsky's first lawyer, for records of his work on her behalf. The subpoena evidently seeks to violate the lawyer-client privilege, a basic element of everyone's right to counsel. Mr. Carter is a man of high reputation for integrity, and there is no showing of any impropriety on his part.
3. In addition to the Washington grand jury, Mr. Starr has one in Virginia -- and the subpoena to Mr. Carter directs him to bring his records there. Why Virginia? Could it have anything to do with the fact that Mr. Carter is black?
4. Mr. Starr is contemplating subpoenas to the Secret Service agents who protect the President. Has he thought about the effect that forcing them to testify would have on the confidence every President should have in those who protect him?
5. Similarly, Mr. Starr planned to wire Ms. Lewinsky to record conversations with others, presumably including President Clinton. Did he think about the consequences of such an act on the ability of this and future Presidents to have candid conversations in the White House?
6. Mr. Starr has put heavy pressure on Ms. Lewinsky to testify against President Clinton. His weapon is a threat to prosecute her for perjury in the affidavit she filed in the Paula Jones case, denying a sexual relationship with the President.
It would be extremely unusual to prosecute anyone over an affidavit in a civil case -- an affidavit that under the rules can be amended. But that plainly is what Mr. Starr is holding over Ms. Lewinsky's lawyer, William Ginsburg, in their unsuccessful negotiations over what she will say. Mr. Ginsburg now apparently thinks that Mr. Starr will call her before the grand jury anyway, grant her immunity in order to keep her from invoking the Fifth Amendment and require her to testify or go to prison for contempt.
The pressure tactics on Ms. Lewinsky would be understandable if they were being used by a prosecutor against a mafia king. In this case they look like a steamroller to crush a gnat. As does much else in the Starr effort. Two hundred F.B.I. agents?
Mr. Starr is also ignoring an ethical problem of his own. Before he was appointed counsel for Whitewater in 1994 he had agreed to file a brief for an outside group in the Paula Jones case, opposing Mr. Clinton's attempt to postpone it.
And he consulted with Ms. Jones's lawyers two or three times on the telephone. How can he properly now deal with matters that arise from the Jones lawsuit?
The Framers of our Constitution well understood the danger that Kenneth Starr illustrates: Give anyone absolute power and he may abuse it, no matter how good his intentions. That is why they created our elaborate system of checks on power.
The independent counsel statute has given us a creature outside the constitutional system. That is what Justice Scalia perceived in 1988. Now Mr. Starr, perhaps outraged by the idea of a President as sexual predator, is driven by a sense of mission -- and a sense of his own rectitude -- to ignore the dangers of prosecutorial abuse.
Conservatives as well as liberals, critics as well as supporters of Bill Clinton should be concerned at what is happening. Through history liberty has depended on observing the decencies of the law. The end does not justify the means.
Monday, February 2, 1998
Copyright 1998 The New York Times
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Anthony Lewis is a two-time winner of the Pulitzer Prize. Prior to becoming a columnist, he covered the Supreme Court and served as London bureau chief.
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