Some legal scholars say they are concerned that the independent counsel law allows a standing inquisition of the president of the United States.
On that basis, they have become intensely critical of Kenneth Starr for transforming his investigation from an examination of the Whitewater land deal to an inquiry into whether President Clinton urged a young woman to lie under oath about a sexual relationship.
But other experts in criminal law say that Starr has simply abided by the cardinal rule of prosecutors to follow a criminal trail wherever it leads.
No one disputes that Starr had the authority to expand his investigation. He was explicitly authorized to do so this month by a special three-judge federal court. But the wisdom of that expansion is another matter.
One scholar who thinks it was unwise is Kenneth Gormley, a law professor at Duquesne University in Pittsburgh and the biographer of Archibald Cox, the first independent counsel in the Watergate case.
“I see no logical connection between an Arkansas land deal and wiring a young woman to find out whether the president committed adultery,” said Gormley, who said he was not particularly a Clinton loyalist. “It’s so far beyond any logical link that it debases the law. It’s as if there’s a permanent inquisition that can go after the president on anything that comes up.”
Mary Cheh, another criminal-law scholar who is a visiting professor this term at the Hastings College of Law in San Francisco, agreed with Gormley’s assessment.
“It creates a kind of witch hunt,” she said. “It allows the prosecutor to look into a person and have no other objective but to come up with a case, any case, against an individual.”
This was the point made by Justice Antonin Scalia in his dissent from the Supreme Court’s 1988 decision upholding the constitutionality of the independent counsel law. Normally, Scalia argued, prosecutors begin investigating a crime and try to determine who was involved in the crime. By contrast, he said, independent counsels are appointed to investigate a particular person and then work backward to determine what crimes the person might have committed.
But many other scholars defend Starr and the procedures he followed. One of them is Sam Dash, a law professor at Georgetown University who was chief counsel of the Senate Watergate Committee and who served for a time as ethics counselor to Starr.
“If this wasn’t in any way related to what he was doing, then he would not have asked for authority to do it,” Dash said. “He’s very rule-of-law oriented. He’s got this mandate, and he’s got to investigate what he was appointed to investigate.”
To obtain the authority to expand his inquiry, Starr cited accusations against the president’s friend, Vernon Jordan Jr. Starr had been investigating whether Jordan’s efforts to line up legal work for Webster Hubbell, the Clinton friend forced from the Justice Department in a financial scandal that later sent him to prison, had amounted to hush money to prevent his cooperation in the Whitewater investigation.
Now, Starr said, he had evidence that Jordan had tried to find a job for Monica Lewinsky, the young intern with whom President Clinton is accused of having an affair, and he needed to investigate whether there was a pattern of buying the silence of potential witnesses against the president.
Joseph diGenova, who was an independent counsel from 1992 to 1995, said that he thought the law establishing the office should never have been enacted in the first place, but he said he had no use for most of Starr’s critics. Most of them, he said, are hypocrites who “never had a problem when it was Republican presidents who were being pummeled.”
“The statute is a monstrosity,” diGenova said. “It’s dumb. It can never be fixed, and it ought to be allowed to expire. But the Democrats wanted it, and now, I say, ‘Here it is guys. You’re a little late to be complaining.”’
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