The record also shows that Mr. Clinton's approach to the independent
counsel's investigation is the same one that Mafiosi and subjects of so-called
white-collar crime investigations regularly take: litigate subpoenas, raise
every possible claim of privilege, attack the prosecutor as unethical or
worse....
...This unseemly record begs the fair question: Why is
President Clinton not cooperating, as he told the
American people he would? Why is he permitting
his lawyers and allies to act as if they were
defending John Gotti or a corporate executive or a
labor leader with big problems that he doesn't want
to see unearthed? A cynic would say because he's
guilty. A skeptic would say because he may well
have criminal law problems.
Answer the Questions,
Mr. President
By PAUL J. CURRAN
Jimmy Carter and Bill Clinton are both Southerners, Democrats and former
governors. Both are Baptists, and both ran for president as "moderates."
But the similarities end there. Mr. Carter attended Annapolis and served
with distinction in the Navy's Submarine Service. Mr. Clinton evaded
military service by means that are, at best, suspect. Mr. Carter appears
incapable of lying. "Malaise" and "lusting in my heart" are ready examples.
Mr. Clinton seems to have problems with truth telling, and apparently has
never confined his lust to his heart.
Most telling, however, are the two presidents' very different approaches
when they became the subjects of criminal investigations.
In 1979, I investigated allegations of crime on the part of President Carter.
These allegations involved loans by the National Bank of Georgia and the
operations of the president's peanut warehouse business. From April to
September, three colleagues and I presented the evidence to a federal
grand jury in Atlanta. I found no basis to bring criminal charges, and I
reported my findings in full to the attorney general and in as much detail as
the law allowed to Congress and the public.
My investigative powers were the same as those of Archibald Cox and
Leon Jaworski of Watergate fame. Like them, I served as special counsel
by appointment of the attorney general. Unlike Kenneth Starr, I was not
governed by the independent counsel statute that mandates appointment by
a three-judge panel.
Subject: The President
Until Mr. Starr's appointment to investigate President Clinton, I was the last
person charged with responsibility for an investigation whose specific
subject from the outset was the president of the United States. The
differences between the way Mr. Carter dealt with my investigation and the
way Mr. Clinton is dealing with Mr. Starr's are striking. They tell a lot about
the two men and their attitudes toward the rule of law. These differences
also help explain why Mr. Starr's investigation is taking years and mine took
just seven months. Here is what the record shows:
In March 1979, at the outset of my investigation, Mr. Carter pledged
publicly to cooperate fully, and that is precisely what he did. At the
outset of Mr. Starr's investigation, Mr. Clinton also pledged publicly
to cooperate fully, but he has not done so.
Mr. Carter, members of his family and others associated with him
responded fully to all subpoenas, made no motions to quash
subpoenas, and raised no claims of privilege, spurious or legitimate.
Mr. Clinton and his associates have litigated the validity of subpoenas
and have invoked claims of executive privilege, attorney-client
privilege and spousal privilege. Claims of privilege, of course, can be
valid, depending on the circumstances. But they can always be
waived. (One factor that federal prosecutors regularly use to measure
a subject's cooperation is his willingness to waive privilege claims in
order to bring out all relevant facts.) Moreover, unlike Mr. Carter,
Mr. Clinton has not directed or even asked others to cooperate.
Susan McDougal is a prime example.
Mr. Carter suffered the indignity of being investigated in silence. No
leaks or spin emanated from him or his people, and there were none
from my side either. Mr. Clinton and his people have leaked, spun
and dissembled endlessly. Indeed, Mr. Clinton has mounted a
full-scale media campaign for months, including vicious attacks on
Mr. Starr and his staff, most of which, as Mr. Clinton knows, Mr.
Starr cannot answer without breaking the law by breaching grand
jury secrecy.
Mr. Carter's lawyers and allies made no public statements about the
merits of my investigation, nor did I. In fact, they said nothing about it
and cooperated fully, in accordance with Mr. Carter's instructions.
Mr. Clinton's lawyers and allies shoot their mouths off and constantly
attack Mr. Starr and his staff's ability and integrity.
On this record, it is manifest that, despite the pledge of full cooperation that
he made to the American people, President Clinton, unlike President
Carter, has done the opposite. He has permitted, if not encouraged, his
aides and supporters to assault the independent counsel and Mr. Starr's
efforts to discharge his statutory responsibilities--responsibilities entrusted to
him by three federal judges in accordance with an act of Congress that Mr.
Clinton himself signed into law.
The record also shows that Mr. Clinton's approach to the independent
counsel's investigation is the same one that Mafiosi and subjects of so-called
white-collar crime investigations regularly take: litigate subpoenas, raise
every possible claim of privilege, attack the prosecutor as unethical or
worse. After all, this is the American way; it's what we've come to expect
from lawyers and their moneyed clients. This is not, however, appropriate
conduct for our president. Jimmy Carter understood this. Bill Clinton does
not.
This unseemly record begs the fair question: Why is
President Clinton not cooperating, as he told the
American people he would? Why is he permitting
his lawyers and allies to act as if they were
defending John Gotti or a corporate executive or a
labor leader with big problems that he doesn't want
to see unearthed? A cynic would say because he's
guilty. A skeptic would say because he may well
have criminal law problems.
The president and his defenders, however, say that
the independent counsel is out to get him, not fairly
but foully. This is nonsense for at least two reasons.
First, Mr. Starr, a former federal appeals judge and former solicitor general
of the United States, has a deserved reputation for integrity, and there is no
legitimate basis to conclude that he has failed to live up to it in his conduct of
the investigation.
Second, Mr. Starr could not possibly frame Mr. Clinton even if he wanted
to. There is simply no way to manufacture a case against the president and
have it stand up. Once brought, charges don't disappear. Indictments either
get dismissed, pleaded to or tried. Moreover, trumped-up charges could
never survive the scrutiny of an impeachment process. A phony case would
destroy the reputation and career of Mr. Starr and the lawyers on his staff
as well.
If the president really believes, as his cronies claim, that Mr. Starr is
corrupt, he has the duty to direct the attorney general to fire the independent
counsel. That Mr. Clinton has not issued such a directive is itself compelling
evidence that he doesn't really believe that Mr. Starr is corrupt or partisan.
Another reason may be that, under the independent counsel statute, Mr.
Starr would have the right to seek judicial review of his firing in the U.S.
District Court for the District of Columbia. What a show that would be!
After all the stalling runs its course, the day will come when Mr. Starr must
invite or subpoena Mr. Clinton to answer under oath all of the pertinent
questions that have arisen during the course of all of the inquiries that the
attorney general and the three-judge court have entrusted to Mr.
Starr--Whitewater, Filegate, Travelgate, etc. Mr. Starr will seek to examine
Mr. Clinton either before a grand jury or, by agreement with the president
and the grand jurors, by deposition for later submission to the grand jury. I
employed the latter course in 1979 when I questioned Mr. Carter under
oath in the White House.
Mr. Starr cannot possibly finish his investigation without questioning, or at
least trying to question, Mr. Clinton. When Mr. Starr issues his invitation or
subpoena, the president has three options:
He can challenge on legal grounds Mr. Starr's right to question him at all.
This is a loser, but it will delay the investigation even longer.
He can do the right thing and answer the questions under oath, as President
Carter did with me back in 1979. As president this is his obligation to the
country.
Taking the Fifth?
Or he can assert his privilege under the Fifth Amendment. He has this
constitutional right, the same as every other citizen. The president, however,
is not just another citizen. If Mr. Clinton goes this route, there can be little
doubt that he will face impeachment. The vast majority of the American
people believe that "taking the Fifth" may properly be viewed as evidence of
guilt, a common-sense conclusion that courts apply routinely in civil cases. If
the President takes the Fifth in response to hundreds of questions, Mr. Starr
will report this fact to Congress and the three-judge panel that appoints
independent counsels, Mr. Clinton will be finished as our leader, and
probably finished as our president.
Mr. Clinton should answer all the questions under oath, just as President
Carter did. His presidency rides on his decision and the nation's response to
it.
Mr. Curran, a New York lawyer, is a former federal prosecutor.
interactive.wsj.com |
