September 18, 1998
Sometimes, Evidence of Guilt Isn't Everything
By ELLIOT RICHARDSON
ASHINGTON -- The issues raised by Kenneth Starr's report to the House Judiciary
Committee are not legal but judgmental and value-related. That does not mean,
however, that they cannot be dealt with rationally.
When I was United States Attorney for the District of Massachusetts from 1959 to 1961 I
sometimes decided not to prosecute someone, even in cases where there was clear
evidence of guilt.
Any one of many factors could lead to this result: the insignificance of the defendant's role in
whatever crime had been committed; the absence of serious harm done by him; the
preferability of a civil, rather than criminal, remedy.
I also had to recommend sentences for all defendants who had been convicted.
These instances of prosecutorial discretion were subject to the influence of slight variations
of circumstance and small differences of degree. Narrow legalisms had no bearing on the
decision I reached. It always came down instead to a matter of judgment.
The same was often the case when I served as Massachusetts Attorney General and
Attorney General of the United States. All these experiences helped to form my perspective
on the unenviable task now thrust upon Congress by Mr. Starr's report. That task, too, calls
both for prosecutorial discretion and for the kind of balanced deliberation that should go into
the framing of a criminal sentence.
To begin with, it will be important for the Judiciary Committee to assess the seriousness of
President Clinton's sexual relationship with Monica Lewinsky and his subsequent attempts to
conceal that relationship.
The former was not a crime.
It would never have been the subject of investigation by Mr. Starr or any other independent
counsel and could not conceivably have been grounds for impeachment.
Mr. Clinton's initial misconduct differs markedly from the intertwined abuses of power that
characterized Watergate. Richard Nixon faced impeachment for those abuses as well as for
covering up the Watergate break-in and defying subpoenas. By contrast, Bill Clinton's
attempts to evade and conceal the truth are his only potentially impeachable offenses.
That is why his lawyers have labored mightily to show that deliberately misleading statements
do not by themselves constitute "perjury."
The House of Representatives, however, is not constrained by the technicalities of criminal
law when it considers the charges against Mr. Clinton.
Given the number, context and persistence of Mr. Clinton's misleading statements, and given
whom he was trying to deceive, the House could well conclude that they constitute grounds
for impeachment.
But there is another, even weightier, question: would the President's removal from office be
in the national interest?
The Judiciary Committee should now address that question on the assumption that Mr.
Starr's accusations are substantially true. If the committee nonetheless concludes that the
President's removal from office is not desirable, it can choose not to prosecute. This would
open the way to outcomes other than trial and conviction.
Removing Mr. Clinton from office might well be an excessive penalty given the noncriminal,
nonofficial character of his initial offense as well as this society's disposition to cloak sexual
behavior from public exposure.
If for these or other reasons the House concludes that the President's removal from office is
not required, it can then consider censure. This would be the logical fallback for members
who felt that no action at all would be too lenient.
On the basis of what I now know, censure would seem to be the appropriate solution. This
opinion is shared, apparently, by a wide range of important players in the current crisis.
Senator Orrin Hatch of Utah, chairman of the Senate Judiciary Committee, who would preside
over Mr. Clinton's trial should the House vote to impeach him, is reportedly exploring a
"middle way." So is Lloyd Cutler, the former White House counsel, who has been discussing
strategy with Presidential aides.
And while censure might further diminish the President's effectiveness, it would be only one
more factor for Mr. Clinton to deal with as he tries to salvage his leadership.
For the country's sake, let's hope that a censure vote will close this ugly chapter and allow us
to get on with more important things.
Elliot Richardson, a former Attorney General of the United States, served under seven
Presidents. |
