C. Boyden Gray

In the nation’s capital, where standard wisdom rumbles down every marble corridor and pours out over every broadcast network, C. Boyden Gray listens to a different beat.

Aloof, aristocratic and an avowed libertarian, Gray, who built his reputation during four years as White House counsel for President George Bush, clearly takes pride in coming to conclusions, both legal and political, independent of other Republicans. For that reason, his views on the issues raised by independent counsel Kenneth W. Starr’s time-consuming investigation of President Bill Clinton have come to be valued by the press and other lawyers.

Gray is no newcomer to the topic. Indeed, he is among a small handful of men and women who have hands-on White House experience with important constitutional issues, such as executive privilege. As the top legal advisor to Bush as president and vice president, Gray dealt frequently with the demands placed on his boss by the Iran-Contra investigation headed by independent counsel Lawrence E. Walsh. In the aftermath of the probe, felony convictions against two Reagan White House aides were overturned on appeal, and Bush pardoned seven other administration officials who were either convicted or charged.

In an interview, Gray, his 6-foot-6 frame slouched in an office chair, is characteristically thoughtful, precise and unsmiling. While he holds the independent- counsel statute in low regard, he leaves no doubt that he views Clinton as an unscrupulous leader who has demeaned the office of the presidency.

An heir to the R.J. Reynolds tobacco fortune, Gray, 55, grew up in the white-columned presidential mansion on the campus of the University of North Carolina, where his father was president. He received an undergraduate degree from Harvard, a law degree from North Carolina, then clerked for U.S. Supreme Court Chief Justice Earl Warren. He is divorced and the father of a teenage daughter.

Question: Does a grant of immunity for Monica Lewinsky mean that the president is about to be indicted?

Answer: It means difficulty for the president. But, ultimately, I believe that a sitting president cannot be indicted and tried prior to impeachment and conviction by the Senate. But he does have to respond to an independent counsel, even if the end result is a report to Congress, and not an indictment.

Q: If a president cannot be indicted, was it proper for Starr to subpoena him?

A: The president has legitimate arguments for resisting a subpoena based on the fact that he cannot be indicted. But it’s by no means certain he would win those [arguments] in court. If he lost them, he would have lost a great deal for the presidency. He’s already lost a great deal of bargaining leverage for the presidency on attorney-client privilege, on the Secret Service, on executive privilege.

The president has previously agreed to testify before Starr in Whitewater--taped depositions in the White House. Prior presidents have agreed . . . . So I think this president has got to do the same.

Q: Does it appear to you that Starr is building a case of obstruction of justice against Clinton?

A: I agree that is what he’s looking for. A report that documents nothing more than adultery is not going to trigger an impeachment hearing. I think he is going to get more from Monica Lewinsky and he’s gotten more from the Secret Service that will go beyond just adultery, that go into perjury and obstruction.

Sara Fritz is managing editor of Congressional Quarterly.

Q: Because Starr’s lengthy investigation has caused difficulties for Democrats, some Republicans who once opposed the independent counsel statute are now in favor of it. Are you one of them?

A: I think it’s a statute that needs to be terminated.

There is a famous Justice [Robert H.] Jackson quote, I think he may have been attorney general when he gave it, but it’s about converting a normal criminal inquiry, which is to find the perpetrator of a crime, into looking at an individual and trying to find the crime that that person committed. And that’s what the independent counsel statute does. It doesn’t identify a dead body or a broken-into store or a stolen purse and say, all right let’s go out and find who did it; it identifies an individual and asks what did that person do wrong? And that’s the ultimate danger of the independent counsel statute. It doesn’t work like a criminal investigation and that’s why it’s bad.

Bear in mind that there have been periods in our history--Teapot Dome is one; Iran-Contra is another, and Watergate is the classic paradigm, where Archibald Cox was appointed with great independence and there wasn’t an independent counsel statute--where the political system is perfectly capable of creating on an ad hoc basis, when needed, an investigative authority where independence is assured. But you don’t have this crazy statute that sits around waiting to be misused. So the political system can deal with these situations. It has in the past.

Q: How would this case have been resolved without an independent counsel?

A: I happen to think that if there had been no independent counsel statute, the only Justice Department-sponsored independent counsel investigation would have been the campaign-finance mess and not any of these other things. So we have a total flip of what I think the outcome would have been without the intrusion of the statute. And that would have been a better outcome, in my opinion.

I think the Paula Jones suit would have happened as it did happen. But I think the president made a mistake in his effort to get this past the 1996 election, which he would have won even if he had settled the lawsuit beforehand. He’s put the country through an examination of things that I don’t think are essential for the survival of this democracy because he didn’t settle it, or because he didn’t let it go to trial, or let it go through the motions and get dismissed, as it ultimately was. That could have all happened in the first term, and we wouldn’t be in this situation now.

Q: Is abolishing the independent counsel statute all that needs to be done?

A: There is a larger point here. The independent counsel statute sort of sets the top of the pyramid of trends over the last 20 or 30 years, since the era of Watergate--a trend that I might call the criminalization of political and policy differences. And this, taken as a whole, has been very corrosive to the operation of the government, generally. It has not enhanced the power of the Congress vis-a-vis the presidency so much, or diminished the power of the presidency vis-a-vis the other branches, but has enhanced the power of the press. That’s not altogether helpful because they are not accountable.

Q: Can you explain what you mean by the criminalization of policy differences?

A: Iran-Contra was the classic case. At the end of the day, [Independent Counsel Lawrence] Walsh never indicted--let alone convicted--anybody of violating any underlying statute regarding arms sales to Iran or providing aid to the contras. He got people on guilty pleas and some overturned verdicts regarding lying to Congress and extraneous matters. But there was never any finding that it violated the Boland Amendment or any other statute that governed foreign-policy relationships with these countries.

Q: They were largely charges of obstruction of justice?

A: Yes, but obstruction of what? In terms of aid to the contras, where Congress had tried to speak, the Boland amendments were exquisitely ambiguous in order to allow people to be on both sides of the issue depending on which way the wind blew. I don’t know what the differences were.

Nobody in Congress was willing to take the hit for having sold Central America to the Soviets. Nobody wanted to do that, so they provided secret aid. But they wanted to be able to use the criminal justice system to punish Republicans politically, depending on which way it came out. It’s that intersection of policy where you have this ethical overlay and ultimately criminal overlay, and it’s not good for the conduct of foreign policy.

Q: How would you solve this larger problem?

A: There was a group that was put together late in the Bush presidency . . . to decriminalize the ethics regime in all of it’s glory--not just the independent counsel statute, but all of the rules that apply . . . . It was a very collegial, very diverse group of scholars and practitioners that came together to agree to this decriminalization under the auspices of the American Bar Assn. . . . . That, combined with the non-reauthorization of the independent counsel statute, would have done wonders to defuse this highly charged situation--where it’s hard to figure out what’s politics and what’s a violation.

Now, of course, Monica Lewinsky is a private thing. Whitewater is pre-White House. But they are all manifestations of the subjugation of our politics to this kind of ethical hijacking. And I think it’s unfortunate and it ultimately reflects that there is just too much power being wielded at the highest levels of government . . . . The ultimate answer is to get the power out, to privatize some of the enforcement of, say, the environmental laws so you don’t have to worry about PAC money flowing in and out.

Q: So you’re saying that while we have been distracted by a sex scandal involving a White House intern, the real issue is the power of economic decision-making in government.

A: I believe so. I’m not condoning anything that is at stake in the Lewinsky matter, all I’m saying is it’s not as important as some of the other matters.

Q: I gather you think the president should not have asserted executive privilege, attorney-client privilege or the protective privilege of the Secret Service.

A: I believe the White House has, regrettably, used these privileges for delay and will, I believe, before it’s all over, diminish these privileges by actually trying to litigate them.

Attorney-client privilege: What’s at stake is the use of taxpayer-financed, government-paid lawyers to defend against investigations of private conduct--Whitewater, Lewinsky. And that has endangered or eliminated the possibility of reliably claiming attorney-client privilege where the lawyer was involved in counseling on official conduct--as, say, in Iran-Contra.

I think that’s unfortunate. because there are all sorts of important policy matters . . . where the president, or the secretary of state or the secretary of the Treasury absolutely has to have legal advice on what their rights and obligations are. But that’s very different than defending yourself against Monica or Whitewater, and in those cases the lawyer-client relationship at the government level has been undermined.

On executive privilege, that is a very important privilege. There are times when you absolutely must preserve the prospect of confidentiality in order to encourage the most robust debate before the president, because he is, after all, one man and he needs all the dissent that he can engender in order to get a full panoply. And by litigating it, they are going to weaken it because, in its ultimate form, it is most powerfully used as a bargaining tool with Congress or with prosecutors.

Secret Service privilege: It should have been left up there, somewhat uncertain, so as to be used as a bargaining chip in the future. Because there are times when, on balance, yeah, you might not want the Secret Service to testify.

Q: Do you think that legal fees related to events prior to his tenure in office should be borne by the president personally?

A: Yes. Now he’s going to be able unavoidably to use the power of the White House to his advantage and that can’t be stopped. But I don’t know why one has to throw in a White House staff of 40 lawyers. You know, we had maybe 15. This office is three or four times the size of ours. I don’t think that’s appropriate.

Q: Has the stature of the presidency been diminished by this investigation?

A: Oh, it will survive this. It will require some repair by the next president, who will have to go back and repair some things with the American public, because I think it’s true that the ultimate harm is the dumbing down, if you will, of respect for government . . . . The principle defense--that everybody does it--was wrong, and I believe that’s going to take a long time to repair. But it can be repaired. Everybody doesn’t do it! The government isn’t for sale. The White House is not a pleasure palace, hasn’t been, won’t be.*

“The political system is perfectly capable of creating, when needed, an ivestigative authority where independence is assured.

The independent councsel statute. . .identifies an individual and asks what did that person do wrong? And that’s the ultimate danger.

The principle denfense--that everybody does it--was wrong, and I believe that’s going to take a long time to repair.”