The Whitewater Endgame

Independent Counsel Kenneth Starr has no evidence at this point that comes anywhere near warranting criminal prosecution of President Bill Clinton, as far as the public record discloses.

But suppose that Starr has a secret smoking gun, or comes up with one in the next few months. Suppose, for example, that lie succeeds in squeezing one or more of the three former Clinton associates convicted by a Little Rock jury on May 28-or the two others set for trial this month-into giving damning testimony against the president, corroborated by new documents.

What should Starr do then? Seek a grand jury indictment of Ike president? Send his evidence to the House Judiciary Committee for consideration of possible impeachment? Make if public and let the voters pass judgment? Or what?

And what should Starr do if tie thinks he has proof of a crime by Hillary Rodham Clinton? This is a more plausible scenario, given evidence like the 1993 memo by then White House official David Watkins contradicting the first lady’s swom statements that she bad no role in the White House travel office firings, and the belated appearance in her home of subpoenaed Rose Law Firm billing records bearing her fingerprints.

While such questions may seem premature, the fundamental purpose of the entire Starr enterprise is to look for any evidence that may implicate the president in a crime. So perhaps it’s time to start thinking about what Starr should do if he finds some.

The experience of the Watergate era offers some perspective.

In 1973, no less a conservative Republican luminary than then Solicitor General Robert Boric filed a brief arguing that the Constitution bars any criminal indictment of a sitting president, and makes the impeachment process the only remedy for presidential criminality. (He immediate purpose of the brief was to reject Vice President Spiro Agnew’s claim that the Constitution shielded htm, too.)

"That was my position then, and that’s my Position now." Bork says. His main argument was that indictment of tie president-unlike that of other impeachable officials-would lead to "the paralysis of a branch of government."

On the other hand, Watergate Special Prosecutor Leon Jaworski was advised by his staff that President Richard Nixon could constitutionally be indicted for his Watergate crimes while in office. Among me jaworski subordinates pressing hardest for indictment-at least after Nixon’s resignation in August 1974-was Richard Ben-Veniste, who Is now counsel to the Democrats on the Senate Whitewater Committee and one of President Clinton’s most vocal defenders.

"Prosecution was vital," Ben-Veniste and his former collegue George Frampton Jr. wrote in a 1977 book entitled Stonewall, "to affirm the principle of equal justice for all, to prove…that no man was above the law," and to avoid the unfairness of punishing Nixon’s subordinates alone for a conspiracy directed by him.

But before the Nixon resignation, Jaworski himself was apparently less confident than his subordinates of his constitutional power to seek indictment of a sitting president. And both he and the cooler heads on his staff rejected that course as unwise.

Philip Lacowara, Jaworski’s counsel, said in a January 1974 memo that because of the "considerable doubt" about the constitutional issue and the "severe dislocations that would immediately flow from naming a sitting President as a criminal defendant, It would be preferable to leave formal proceedings to the House of Representatives."

The next month, in addressing the grand jurors- who seemed eager to indict Nixon-Jaworski "argued strenuously against indictment, even though he was convinced that Nixon had been criminally involved" in the cover-up, according to Stanley Kutler’s The Wars of Watergate: "The constitutional doubts, [Jaworski] maintained, were substantial, and undoubtedly an indictment’s constitutionality would be litigated, leaving, Jaworski said, ‘trauma’ within the nation and ‘scars’ on the presidency."

According to Kutler, Jaworski’s staff "unanimously believed it should recommend a grand-jury presentment that would state the determination of Nixon’s culpability and the conclusion that he would have been indicted had he not been president" Jaworski chose the less confrontational course of naming Nixon secretly as an unindicted co-conspirator, while providing Ike evidence through the court to the House Judiciary Committee.

The lessons of Watergate coincide with the teachings of common sense: Whether or not the president is constitutionally immune from criminal prosecution while in office, it would be feckless and irresponsible for any prosecutor to seek a criminal indictment of a sitting president.

First, the constitutional arguments against indictment are substantial. Although the president has no explicit immunity analogous to die speech and debate clause, which shields members of Congress, the framers may have assumed that any such provision would be gratuitous because federal prosecutors would serve at the pleasure of the president.

And while the Supreme Cowl’s 1988 decision in Morrison v. Olson upheld die 1978 statute providing for judicial appointment of independent counsel, as a relatively modest exception to the president’s power to "take cane that the laws be faithfully executed," the decision rests in part on the premise that the president has some residual power to remove an independent counsel. Nothing in Morrison suggests fat the Court would allow an independent counsel to precipitate a constitutional crisis by trying to put the president in prison.

Aside from the constitutional and prudential concern that swayed Jaworski, Whitewater Ain’t Watergate. Even in the highly unlikely event that clear proof materialized that Clinton was culpably involved in some kind of Arkansas financial scam or in selling patronage jobs for campaign contributions those would be petty crimes next to Nixon’s-the sort of crimes that prosecutors often decline to pursue as too stale, or too commonplace, of too close to the line of legality.

For these reasons, it seems highly unlikely that a sober man like Starr would seek indictment even if he had evidence implicating President Clinton in a crime. The trickier question is what he would do instead, or should do, beyond providing the evidence to the House Judiciary Committee.

Should he announce his own legal conclusions about the president? Seek a grand jury presentment ratifying those conclusions, as Jaworski was urged to do? Name the president as an unindicted co-conspirator, as Jaworski secretly did?

The fact that this is an election year makes these questions all the more complicated. Perhaps the wisest course would be for Starr to follow Jaworski’s precedent, giving the House Judiciary Committee all the evidence he legally can, together with a report providing a road map to the facts, while avoiding legal conclusions and leaving it to the House to decide whether to make the report public. And, if possible, he should do so-and the House should make any consequent public disclosures-at least two months before the election. No "October surprise, please.

Any more accusatory approach could create the appearance of seeking improperly to influence voters by branding the president a criminal, while leaving him no time in which to make a full response.

In the case of Hillary Clinton, on the other hand, it’s clear that the Constitution provides no shield from indictment But Stan-should still give her a bit more benefit of the doubt than other subjects of his investigation. An indictment of the first lady would obviously be a severe blow to the president, and thus to the presidency. In an election year, it would inevitably invite charges of political motivation, especially given the apparent absence of credible witnesses against the first lady.

Besides that, the most plausible known allegations against the first lady boil down to claims that she lied or I covered up not to hide some underlying crime, but to avoid political and personal embarrassment.

Wise prosecutors often decline to bring false-statement or perjury charges unless the prospective defendant’s purpose was to conceal a serious underlying wrong, or unless the lies were so brazen as to be easily provable and especially culpable.

In 1984, for example, when then Independent Counsel Jacob Stein cleared soon-to-be Attorney General Edwin Meese III of deliberately omitting a $15,000 interest-free loan from his financial disclosure statements, Stein noted that Justice Department policy "disfavors" such prosecutions "except in the most egregious cases, such as where the false fling is connected with an effort to conceal or cover up significant underlying conduct that is clearly improper, illegal or criminal"

The evidence suggesting deliberate lies by Mrs. Clinton may be stronger than that against Meese in 1984. Whether It is strong enough to warrant criminal charges is harder to tell at this point.

But if Starr does bring a prosecution It had better be airtight-or he can kiss his reputation goodbye.