The Scandal watch
By David Dorsen
No likely quick Clinton-Congress compromise
It seems that everyone is searching for a compromise or "plea
bargain" that would resolve what threatens to become a long,
paralyzing crisis. A closer look reveals that one group has made
little or no move in this direction. Those are the individuals
directly involved in the Monica Lewinsky scandal or
investigation, particularly President Clinton and the House and
Senate GOP leadership.
There are several reasons why these people have been reticent.
It certainly is not because self-interest does not dictate that a
mutually acceptable middle ground be reached, if at all
possible. Obviously, that's in the president's interest. It also is
in the interest of House and Senate Republicans, though less
obviously.
While they see the scandal as wounding the president and the
Democrats, they don't relish conducting lengthy hearings to
uncover what precisely Bill Clinton and Monica Lewinsky did
with each other and when they did it. They recognize, too, that,
if the public perceives them as unfair smear-artists, their efforts
could backfire.
Also, some voters may not see the November mid-term election
as a referendum on Clinton's conduct. Instead, they may
perceive it as a choice between those lawmakers who want to
prolong the investigation and decision-making process and
eventually force Clinton out of office (Republicans) and those
who want to move quickly, punish Clinton, but permit him to
finish out his term (Democrats).
Major problems stand in the way of a compromise, which
lawyers who litigate and settle cases recognize. Primarily, it is
far too early in the process. Too many facts remain unknown;
the relative strengths of the parties is unclear; and the different
sides don't trust each other. In addition, no one wants to be the
first to embrace a compromise, which will be viewed as a sign of
weakness.
Constructing a mutually acceptable accommodation is another
problem. There are many variables, little precedent, and
problems in binding the participants. It's much easier when the
only issue is money, as in most commercial disputes.
An indication of the enormous difficulty can be gleaned from an
op-ed piece in last Thursday's New York Times by Nathan
Lewin, a respected Washington lawyer who represented former
Attorney General Edwin Meese III in an independent counsel
investigation a decade ago.
Lewin's imaginative plan would have the president waive any
constitutional defense to indictment that he has as a sitting
president as well as reject any future pardon. That would pave
the way for an immediate indictment containing the first 10
charges in Independent Counsel Kenneth Starr's report. Then,
one of two things would happen:
First, "Congress could then decide whether the president would
be impeached apart from determining what specific crimes may
have been committed and what punishments would result."
Congress and the country would know that those issues would
be decided in a criminal case to be tried in 2001.
Second, alternatively, the president would plead "no contest to
perjury and obstruction of justice charges based on certain
undisputed facts," with an explicit agreement that "he preserved
for appeal the legal arguments his lawyers have been making for
him." That process would proceed expeditiously. If Clinton lost,
sentencing would await 2001.
It won't fly, not by a long shot. While Starr and the GOP might
enthusiastically embrace the plan, it is anathema to Clinton. A
few reasons:
1.Clinton gets indicted or even convicted, which is
otherwise in doubt, and could face a potential jail
sentence. He also surrenders all leverage that goes with
an uncertain and unpalatable (to Congress as well as the
president) congressional fact-finding process and legal
debate.
2.Clinton must run the country while under indictment, if
not conviction; foreign leaders can accept negative press
reports and congressional attacks, but a president who
is under indictment?
3.Who can assure that members of Congress would not
vote to impeach and convict based on the alleged crimes
contained in the indictment rather than "issues of more
general concern," as Lewin suggests?
4.Who can assure that the Supreme Court would hear the
case that, aside from the identity of the prospective
defendant, has little in the way of novel or important legal
issues?
5.Who can assure that Starr won't try to find a loophole
that would permit him to file another indictment if the first
is thrown out on technicalities or Clinton wins, even if he
agrees not to?
Ideas will come thick and fast, but it's going to be a long time
before any deal can be made.
- David Dorsen, a Washington attorney and visiting lecturer at
the Terry Sanford Institute of Public Policy at Duke University,
was an assistant U.S. attorney in New York and assistant chief
counsel of the Senate Watergate Committee.
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