A most egregious attempt to prejudice a hearing by pre-trial publicity
The report of Kenneth Starr, the US independent counsel investigating various alleged activities of President Clinton's, has been hugely hyped and seems certain to become a historic document. But it was produced in circumstances which are highly questionable and, considered as a legal document, is very weak.
It is grossly discreditable in its attempt to deprive Clinton of a proper hearing by flooding the media with salacious detail.
Impeachment
Impeachment is the method laid down in the US constitution for seeking the dismissal of a President. It seeks "conviction for treason, bribery or other high crimes or misdemeanours". It has been used only once against a President, unsuccessfully, in 1868, and on a small number of occasions against other federal officers, mainly judges. Richard Nixon resigned under threat of impeachment in 1974.
The roots of impeachment go back to 14th-century England, but the US version is quite different from the original form. Now, the House of Representatives must vote by simple majority to prefer charges or articles of impeachment. These are heard by the Senate, presided over by the Chief Justice. A twothirds majority is needed for conviction.
In practice, the matter is first considered by a committee of the House. This reports to the full House, which has been known, in judicial cases, to reject a report. If the motion to impeach proceeds, the Senate hearing is in effect a trial of the President.
"High Crimes Or Misdemeanours"
The meaning of this phrase is of central importance. Because precedent is so scarce it is hard to be dogmatic about it. At the crudest level, one could take the view of representative Gerry Ford (later Nixon's successor), who in 1970 declared that "an impeachable offence is whatever a majority of the House of Representatives considers it to be at a given moment in history".
But Ford was not renowned as a jurist. When the House Judiciary Committee was considering the impeachment of Richard Nixon in 1973, it took the opinion of a distinguished group of lawyers and historians on the meaning of the phrase. They reported that "the criminal law sets a general standard of conduct that all must follow. It does not address itself to the abuses of Presidential power. In an impeachment proceeding the President is called to account for abusing powers that only a President possesses" (emphasis added).
Incidentally, the committee staff member who had responsibility for liaison with the expert group in 1973 was a bright young lawyer called Hillary Rodham.
It seems (one cannot be certain) that the committee accepted this view. They declined to recommend Nixon's impeachment on one of the proposed grounds, relating to a false federal income tax return. Apparently this was done on the basis that the return was not filed by Nixon in his capacity as President.
The central relevance of this point can easily be seen. A President is subject to the ordinary civil or criminal law in respect of ordinary crimes or civil wrongs, but impeachment is a proceeding taken against him as President for actions done in that capacity. Fundamentally, this debate is merely a lawyer's way of posing the basic political question: when is the private sexual behaviour of a public man relevant to his fitness for office?
Starr's Evidence
Of course, the question does not arise in the abstract. Starr says it is not the sex but the cover-up that concerns him. False statements were made under oath, justice was obstructed and witnesses interfered with.
But Starr's factual case on these matters is extraordinarily weak.
He does not allege subornation of perjury although that was the basis on which he got his remit extended to the Lewinsky affair last January. Instead, he descends to most unlawyerly vagueness by alleging merely that Clinton "had an understanding with Lewinsky that they would lie about their relationship under oath". The detail of his report simply fails to support this.
He claims " . . . the President sometimes asked if she had told anyone about their sexual relationship or about the gifts: she (falsely) assured him that she had not. She told him that `I would always deny it, I would always protect him' and he responded approvingly. The two of them had in her words `a mutual understanding' that they would `keep this private so that meant deny it and take whatever appropriate steps needed to be taken'. "When she and the President were both subpoenaed to testify in the Jones case Ms Lewinsky anticipated that `as we had on every occasion and every other instance of this relationship we would deny it' (emphasis added)."
It has to be remembered that Ms Lewinsky's testimony was given without cross-examination to a man with total power over her liberty and that of her mother. Even in those circumstances, it simply does not add up to an allegation of suborning perjury or obstructing justice. Ms Lewinsky's "anticipation" is no sort of evidence at all. It gets worse. Starr concedes that Clinton "did not expressly instruct her to lie" but alleges that he failed to tell her to confess. Starr says that "on the frequent occasions when Ms Lewinsky promised that she would `always deny' the relationship and `always protect him', for example, the President responded in our recollection `that's good' or something affirmative, not `don't deny it' ".
From the point of view of a prosecutor, this is simply nonsense. It is legally meaningless. And it will have to stand for present purposes as an example of the general vagueness of the evidence and its failure to support the allegation so ringingly made.
The main particular allegation of obstruction of justice is that Clinton tried to conceal various small gifts to and from Lewinsky. But Lewinsky herself claims to have told Clinton without prompting that she would "put the gifts away" and to have received no particular response. Another witness says Lewinsky told her that she (Lewinsky) was uncomfortable with the gifts and asked her to take them away. Lewinsky denies this.
Almost incredibly, Starr alleges that Clinton is guilty of obstruction of justice by failing to give voluntary testimony to a grand jury and by claiming executive privilege in some areas. This is simply legal nonsense. If one is asked to do something voluntarily, how can refusal be an offence, never mind a "high crime"?
Starr claimed that Clinton's various public denials of a sexual relationship amount to obstruction of justice. This presumably is a fallback position, because he fears he can't prove perjury. People have lied about sexual matters since time began. When (as in the case of President Kennedy and Dr Martin Luther King) their affairs are spied on by state authorities the temptation to do so is almost irresistible. Is this a "high crime"?
Starr does not allege perjury, though he does say that Clinton "lied under oath". Why this reticence in a report otherwise graphically explicit? Perjury requires that the false evidence be about "a material matter" and Starr himself obviously doubts whether any or all of the inquisitions to which Clinton was subjected meet that test. The Lewinsky affair's connection with the Jones action is at best debatable. Moreover, the evidence was given under extremely artificial definitions of "a sexual relationship" so that proof of intentional perjury would be difficult.
Lewinsky herself is clearly an unwilling, vague and confused witness, giving evidence under extreme duress created by Starr himself. His report's allegations stand up poorly when contrasted with her actual language, as demonstrated above. In any hearing the threats to which she and her unfortunate family were subjected by the independent counsel in order to produce salacious detail would undermine her testimony even assuming that she repeated it.
Why All Thedetail?
If the report is viewed as the opening speech for the prosecution, it is unimpressive in the gross disparity between the allegations and the evidence produced to support them. Prosecutors do not usually exaggerate in this way because they know that immediately they are finished speaking they must call the evidence. If it does not measure up to the opening they will lose credibility with the court or jury.
But Starr is not subject to this wholesome discipline. He has published his report knowing that it will be weeks or months before Clinton can test the evidence. I believe he has embarked on a grossly discreditable and unethical strategy of trying to damage Clinton so greatly that he will be forced to resign without a hearing.
There is no other explanation for the inclusion in his report of so much salacious detail. This, after all, is a preliminary report, the very first step in a complex procedure. He has included in it every last detail of 10 brief furtive sexual encounters, none of them involving ordinary intercourse, from the moment at which Lewinsky, at her first meeting with Clinton, displaced her clothing to reveal part of her thong underwear.
To put it bluntly, this is the most egregious as well as the most expensive attempt in history to prejudice or even avoid a hearing by damaging pre-trial publicity. He has hopped the ball in the most helpful fashion to Clinton's political and media opponents, who are running with it as fast as as they can. It has been pointed out that the material is of such a nature as to trigger certain child protection mechanisms on the Internet. But any explicit description of sexual activity on the part of any person - John Kennedy, Martin Luther King or even Kenneth Starr himself, would do this.
Clinton's misfortune is that by repeated indiscretions he has given a wily and unscrupulous opponent this opportunity. There is only one upside for Clinton in Starr's approach. Perhaps because of the way he came by Lewinsky's evidence - the taping of a private conversation with a so-called friend - her account does not portray her as a victim of unwanted sexual approaches, but rather as their determined instigator. It is of course a tragedy for Lewinsky as well as for Clinton. The result is humiliating, perhaps crushing, to both of them. But "high crimes or misdemeanours" and "abusing powers that only a President possesses"? I don't think so.
Adrian Hardiman is a senior counsel