John, glad you liked the post. And I can appreciate (although I am not sure I share) your reasons for wanting to keep the OIC law.
Nevertheless, you might like to take a look at what Gene McCarthy (yes, that McCarthy) has to say about the law in question. j g cordes posted this earlier, and I think it is an interesting take:
techstocks.com
And here is a (rather outdated) piece by Elizabeth Holtzmann, not just criticizing the law, but also directly confronting the issue that appears to bother you most. I know you won't agree with it, of course, but that's not the point.
Again, I apologize for posting the entire piece, rather than the URL (again didn't write it down). (By the way, if any of you computer whizzes out there can advise me how to post these pieces without the lines all breaking up into peculiar shapes, please let me know!)
New York Times
August 10, 1998
NOT WHY WE WROTE THE ACT
Elizabeth Holtzman
(Elizabeth Holtzman, a former Democratic member of Congress, practices law in New York City.)
As one of the authors of the original Independent Counsel Act, I never dreamed that a special prosecutor
would be using his enormous powers to investigate accusations about a President's private (and legal)
sexual conduct.
We acted against the background of the Watergate affair, which involved serious crimes, including an
illegal break-in. The cover-up also involved serious crimes, including the paying of hush money to the
burglars and the misuse of the Central Intelligence Agency to block an investigation by the Federal
Bureau of Investigation. We wanted to put a mechanism in place that would insure a thorough and fair
investigation in the event a President ever committed such acts in the future.
That is a far cry from what is being investigated in this case: accusations of lying in a civil deposition
about a possible sexual relationship that was not even material to the case, and accusations of an
agreement not to disclose the relationship in that proceeding. Neither involves the illegal misuse of public
power that was at the center of Watergate.
In Watergate, the special prosecutor was investigating a cover-up that, for the most part, had already
taken place. Kenneth Starr, by contrast, seems determined to make the President's grand jury testimony
itself the basis for criminal or impeachment proceedings. In other words, he is manufacturing the
circumstances in which criminal conduct may occur.
Mr. Starr should turn over the results of the DNA testing of Monica Lewinsky's dress to President
Clinton's legal team before Mr. Clinton testifies to the grand jury. If Mr. Starr does otherwise he will be
taking unfair advantage of the President's agreement to testify.
True, prosecutors do not normally hand over evidence to targets or defendants in a criminal
investigation. But there are exceptions. The President is not a normal target. And in the matter of his
grand jury testimony, he actually has fewer rights than the average witness.
When the President testifies before the grand jury via closed circuit television, he will be facing serious
hazards. If he reaffirms his story that he and Ms. Lewinsky had no sexual relationship, he faces possible
perjury charges, especially if semen is found on Ms. Lewinsky's dress.
If, on the other hand, Mr. Clinton recants and says that he did have a sexual relationship, he opens
himself up to perjury charges for his testimony in the Paula Jones deposition, where he denied having
had a relationship with Ms. Lewinsky. Another danger of a confession is that it might strengthen the
prosecutor's claim that Mr. Clinton obstructed justice, since if there was a relationship there was
something to cover up.
In any case, the President will surely be questioned about whether he tried to get Ms. Lewinsky to conceal
a relationship, and his testimony could be the basis for perjury or obstruction of justice charges.
A witness would not typically take such a risk by testifying. Indeed, I can't imagine any lawyer allowing
a client to testify under these circumstances.
But Mr. Clinton has no choice. Unlike most witnesses, he cannot invoke his Fifth Amendment right not
to testify on the ground that he might incriminate himself -- even though he is fully entitled to do so. If
he were to invoke the Fifth, it could easily, if unfairly, be portrayed as an admission of guilt and could
permanently taint his Presidency.
The President also cannot refuse to obey a subpoena to testify before the grand jury. He cannot place
himself, as Richard Nixon tried to do, above the law. Plainly, Mr. Starr is maneuvering to take
advantage of Mr. Clinton's inability to claim the Fifth and coercing him into becoming a witness against
himself. But Mr. Starr should understand that the constraints on the President require restraint in the
use of the prosecutor's power.
It is troubling to see how far the country seems to have strayed from the lessons of Watergate. The office
of the independent counsel was created to investigate abuses of office. None of the evidence publicly
available remotely suggests that any such offense is present here, and so Mr. Starr is on a mission to
invent it by trapping the President in a grand jury proceeding.
|
