***** NY TIMES BLOCKBUSTER - STARR MAY SOON INDICT KLINTOON ******
By DON VAN NATTA Jr.
WASHINGTON -- The independent counsel, Kenneth W. Starr, has concluded that he has the constitutional authority to seek a grand jury indictment of President Clinton before he leaves the White House in January 2001, several associates of Starr said this week.
While the President's legal team has fought in the Senate chamber for the President's political survival, Starr and his prosecutors have actively considered whether to ask a Federal grand jury here to indict Clinton before his term expires, said Starr's associates, who spoke on the condition of anonymity.
But these associates emphasized that Starr had not decided whether, or when, to ask the grand jury to charge Clinton with perjury and obstruction of justice in the Monica S. Lewinsky matter.
"He is persuaded by precedent and logic that a sitting President can be indicted," said an associate who speaks frequently with Starr. "But he has given no hint about whether he would do it, either now or sometime down the road."
Before taking such unprecedented action, Starr would be guided by a number of factors, including the impact that an indictment of the President would have on the nation and the Government, said the associates and others with whom Starr has discussed the matter.
The associates say that Starr agrees with the conclusion of his office's two constitutional law scholars, who say that the Constitution and legal precedent provide a prosecutor with the authority to seek the indictment, trial and conviction of a sitting President.
The scholars concluded that the 1997 Supreme Court decision allowing the Paula Jones sexual misconduct lawsuit to proceed while the Clinton was in office greatly increased the chances that an indictment of the President would survive a constitutional challenge by his lawyers, the associates said.
Although most constitutional scholars say that a sitting President can be indicted, the majority of them who have written or spoken on the subject believe that a trial would have to wait until the President left office.
Lawyers in Starr's office have been poring over the record of the debates within the office of Leon Jaworski, the Watergate special prosecutor, over whether to indict President Richard M. Nixon,
both before and after his resignation, the associates said. To do that, Starr's lawyers scoured autobiographies, including Jaworski's, and obtained copies of prosecution memorandums in the National Archives written by the Watergate prosecutors, the associates said.
These discussions in Starr's office occur at a highly sensitive time. Several Senate votes on procedural issues this week made it all but certain that there was not the two-thirds majority, 67 votes, required to convict Clinton on the two articles of impeachment and remove him from office. Starr and his prosecutors have had no communications with the House managers or the White House about the possibility of including Clinton's future criminal jeopardy in negotiations over a censure, the associates said.
Charles G. Bakaly 3d, the spokesman for Starr, said, "We will not discuss the plans of this office or the plans of the grand jury in any way, shape or form."
Clinton Lawyers Cite Possible Indictment
As recently as this week, the President's lawyers had argued in the Senate trial that they were deeply concerned that the Office of Independent Counsel would seek the indictment of Clinton after his term expired on Jan. 20, 2001.
David E. Kendall, one of the President's personal lawyers, has demanded that House managers provide access to about 55,000 pages of unreleased documents compiled by Starr that Clinton's lawyers said he would need to defend himself against a criminal indictment.
Kendall threatened to seek testimony from witnesses in the Senate trial to explore what he said was improper collusion between Ms. Jones's lawyers and Starr's prosecutors in late 1997.
Bakaly has denied there was collusion between his office and Ms. Jones's lawyers.
Starr's associates said that the independent counsel had several options in the coming weeks or months.
It is possible that he could choose not to seek an indictment of Clinton, they said. Or he could decide to seek the indictment after Clinton's term expires. Another option that has been discussed is to seek an indictment in the next few months, but asking a judge to keep it under seal, meaning that it would remain a secret for some time. If Starr chose to postpone a trial of the President until after he left office, a sealed indictment would keep the charges secret and spare Clinton the indignity of trying to lead the country while under the cloud of a public indictment.
A fourth option would be to indict Clinton while he is in office, but ask the court to postpone a trial until after he leaves office.
Starr's associates said that neither the outcome of the Senate trial nor the public's wishes expressed in opinion polls would affect his decision. "Prosecutors do not take polls to decide what to do," another associate of Starr said. "Ken has proven he is immune to polls."
Those polls show that most Americans view Starr as an overzealous prosecutor who has pursued Clinton, both in criminal court and in his impeachment referral to the House of Representatives in September.
Last summer, Starr and his prosecutors subpoenaed Clinton to appear before the grand jury, but then agreed to withdraw the subpoena after the President decided to voluntarily testify, which he did from the White House on Aug. 17. On Sept. 9, Starr sent his 445-page referral, which was full of sexual detail, to the House. And on Nov. 19, he testified before the House Judiciary Committee as an "aggressive advocate" for impeachment, in the words of his ethics adviser, Samuel Dash, who resigned in protest over the tenor of Starr's testimony.
Besides his investigation of the Clinton-Lewinsky case, Starr has filed multiple criminal cases against Webster L. Hubbell and Susan H. McDougal, two associates of the Clintons who say they are being singled out unfairly because they will not provide damaging evidence to Starr's continuing Whitewater inquiry. Hubbell and Ms. McDougal face trials later this year.
More recently, Starr indicted Julie Hiatt Steele, a Virginia woman who cast doubt on statements by Kathleen E. Willey that Clinton had made an unwelcome sexual pass at Ms. Willey inside the White House in November 1993.
In Alexandria, Va., Ms. Steele was charged with three counts of obstruction of justice and one count of witness tampering. Her lawyer called the charges "a glaring example of Starr's gross abuse of his prosecutorial power." Starr's office has defended the Steele indictment.
Starr Keeps Quiet About His Intentions
tarr has not said publicly what he will do in his still active criminal inquiry of the President. In his testimony before the House Judiciary Committee on Nov. 19, Starr was asked whether the President, after he left office, was subject to criminal prosecution for offenses that he might have committed while in office.
Starr said that he thought that the framers of the Constitution "did intend for there to be separate proceedings" in the criminal courts and the Congress. He also indicated that the question of an indictment would be assessed "after this body has done its duty and reached its judgment."
Starr said: "Before we ever seek an indictment, we engage not only -- and I would hope any prosecutor's office would do that -- in a very careful assessment of the facts, the elements of the offense and the like. We go through each of the elements. We look at the witnesses and the documentary evidence and the like, and then we have to satisfy, following Justice Department standards: Is it more likely than not that a fair-minded jury would convict based on these facts, beyond a reasonable doubt?"
At a November breakfast meeting with reporters here, Bakaly, the independent counsel's spokesman, said that Starr had not ruled out the option of seeking an indictment of Clinton after his term ended, but Bakaly quickly added: "I don't want to send any signals here. There's no statute of limitations problem. We have developed a criminal case."
Inside the Independent Counsel's Office, a group of prosecutors believes that not long after the Senate trial concludes, Starr should ask the grand jury of 23 men and women hearing the case against Clinton to indict him on charges of perjury and obstruction of justice, the associates said. The group wants to charge Clinton with lying under oath in his Jones deposition in January 1998 and in his grand jury testimony in August, the associates added.
The five-year statute of limitations for a perjury charge would not expire until 2003.
The grand jury's 18-month term expires in March, but one associate said that Starr could ask the presiding judge for a six-month extension. If Starr chooses to seek an indictment of Clinton after September, however, he would need to impanel a new grand jury and either hear from witnesses all over again, or have the testimony read to them, the associates said.
2 Consultants Look at Constitutionality
ince early last year, the constitutional question has been exhaustively researched by two constitutional law experts who are paid consultants to Starr: Ronald D. Rotunda of the University of Illinois Law School and William Kelley of the University of Notre Dame.
Both Rotunda and Kelley have concluded that the 1997 Supreme Court decision in the Paula Jones case suggests that the Constitution does not prohibit a prosecutor from seeking an indictment, trial and conviction of a sitting President, the associates said.
With unanimity, the Supreme Court ruled that neither the Constitution nor public policy justified allowing the President to delay the pretrial proceedings and the Jones trial itself until after Clinton had left office.
In an editorial published by The Legal Times in July 1997, Rotunda said the Court's reasoning in Clinton v. Jones suggested "that the Constitution provides no bar to the indictment, trial and conviction of a sitting President for a Federal crime, although the trial court might not be able to impose a sentence until the President's service of office is completed."
In his court papers filed in the 1974 Watergate tapes case, United States v. Nixon, Nixon argued that a President could not be criminally prosecuted. "If the President were indictable while in office," he said, "any prosecutor and grand jury would have within their powers the ability to cripple an entire branch of the national Government."
At that time, Jaworski was advised by lawyers in his office that they had concluded that Nixon could be indicted while still in office. But Jaworski rejected that advice, believing that an indictment of Nixon would most likely fail to withstand a constitutional challenge.
In 1973, Robert Bork, the Solicitor General at the time, filed a brief arguing that the Constitution barred any criminal indictment of a sitting President. He concluded then, and still believes, that the impeachment process is the only remedy for criminal acts by a President.
Henry S. Ruth Jr., a Watergate deputy special prosecutor, said in an interview this week that he thought there was nothing in the Constitution that prevented the indictment of a sitting President.
"But my own view at the time, which I expressed to Leon, was that the indictment of a President is such a momentous event that the impeachment process should go first," said Ruth, who is now retired.
In their talks, the lawyers in Starr's office have cited the arguments made in the Watergate era in their deliberations about whether to proceed with such drastic action, associates of Starr said.
Those in favor have cited a view held by some prosecutors in Jaworski's office that "a failure to indict the incumbent President, in the face of evidence of his criminal activity, would seriously impair the integrity of the criminal process," an associate of Starr said.
Another argument in favor is that "prosecutors should pay no heed to considerations of national interest," an associate of Starr said. As a prosecutor in Jaworski's office said in 1974: "We have a duty to act without regard for external factors. It is not for us to weigh the political effects."
But several of Starr's prosecutors have also said that the Nixon-era prosecutors considered both the risk that the Supreme Court would ultimately strike down an indictment and the impact on the nation.
Several times since the President's Senate trial began on Jan. 6, Kendall has argued that the proper forum to try Clinton on charges of perjury and obstruction of justice is a criminal courtroom.
"Those comments are seen by some in the office as an invitation," one associate of Starr said.
nytimes.com
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