Clinton, Starr Converge at a Legal Crossroads

It is the tawdriest of presidential scandals, one that most Americans wish had stayed in the tabloids and never made it to the evening news.

Yet with President Clinton scheduled to testify before a federal grand jury Monday about his relationship with former White House intern Monica S. Lewinsky, independent counsel Kenneth W. Starr’s investigation is about to make constitutional history.

Clinton, already the first president to be successfully subpoenaed by a grand jury, will become the first to testify as a target of a criminal investigation. (Technically, his testimony will be voluntary, offered only after Starr agreed to withdraw his subpoena.)

Moreover, the investigation has set legal precedents by producing court rulings that neither a president’s security agents nor the government lawyers he consults may refuse to answer questions in a criminal case.

And that is only the beginning. The case ultimately could redefine the relative powers of the executive, legislative and judicial branches of government when they collide--as all three do now.

The first constitutional showdown could occur Monday if Clinton, who will testify by closed-circuit television from the White House, balks at answering some of the questions. In that case, Starr could ask Chief U.S. District Judge Norma Holloway Johnson to hold Clinton in contempt of court, although it is not clear that a judge has the authority to hold the head of the executive branch in contempt.

Likewise, Starr has not foreclosed the option of seeking an indictment of Clinton--despite a substantial body of opinion holding that the president also cannot be indicted.

Far more likely, Starr will draw Congress into the action by reporting his findings to the House of Representatives. Although the House Judiciary Committee, which would have initial jurisdiction over Starr’s report, has been coy about its intentions, the ultimate result could be the third presidential impeachment proceeding in the nation’s 206 years of rule under the Constitution.

As far as the American public is concerned, either an indictment or an impeachment proceeding would represent a gross miscarriage of justice. Unless the opinion polls are uniformly wrong, Americans believe that the less said about the president’s private life, the better.

No matter. Public opinion is no match for the legal momentum that Starr’s investigation acquired on Jan. 16, when Atty. Gen. Janet Reno successfully asked the three federal judges supervising Starr’s inquiry to grant him authority to look into Clinton’s relationship with Lewinsky.

“In re: Madison Guaranty Savings & Loan Association” was the misleading title attached to the court order, a reflection of Starr’s original investigation of whether Clinton had improperly profited from an Arkansas resort named Whitewater at the expense of Madison Guaranty.

In his four-year, $35-million investigation, Starr had long since expanded his horizons beyond Whitewater to a half-dozen only marginally related subjects, from Clinton’s firing of the White House travel office staff to allegations that the White House had made political use of FBI files.

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But the independent counsel shows every sign of subordinating all these lines of inquiry in favor of the one that seems to lead all the way to the president.

If he concluded that he had found “substantial and credible” evidence of an impeachable offense in any of the other matters, he would be required by law to report his findings to the House. So far he has not done so.

Even on the Lewinsky matter, Starr, through a spokesman, has insisted that he has not yet determined whether his investigation has developed evidence of an impeachable offense.

However, Starr’s staff, according to an informed source, already has completed a working draft of a report of about 300 pages that is restricted to the Lewinsky case and includes questions of perjury, subornation of perjury and obstruction of justice.

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Clinton cannot be punished, at least not by the law, for having a sexual relationship with a White House intern half his age. Rather, Starr is investigating whether Clinton lied about the relationship in sworn testimony in the sexual harassment case brought against him by Paula Corbin Jones and whether he plotted with Lewinsky and others to cover up the facts.

In that civil suit, since dismissed by a federal judge, Jones charged that Clinton solicited sexual favors from her while he was Arkansas governor and she was a state employee. Clinton was asked about Lewinsky by Jones’ lawyers, who were trying to demonstrate a pattern of conduct on Clinton’s part.

Still uncertain, according to legal experts, is whether Starr’s report may include direct testimony to a federal grand jury. The law prohibits disclosure of proceedings before a grand jury--although in this case the media have reported numerous unsourced leaks.

If the grand jury proceedings are absent from Starr’s report, the House Judiciary Committee, which will receive it, could seek a federal court order to gain access. By Monday the jury will have heard not only from Clinton and Lewinsky but also from Lewinsky’s mother, a score of Secret Service personnel and numerous other witnesses.

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That is how the committee obtained grand jury proceedings in its Watergate investigation of President Nixon 24 years ago. Leon Jaworski, the Watergate independent counsel, resisted the committee’s request for grand jury evidence until the committee chairman successfully asked the judge overseeing the case to order the evidence turned over to the committee.

The committee approved three articles of impeachment, but Nixon resigned before the full House could vote to send the matter to the Senate for trial. Only once has that happened, and in that case the Senate fell one vote short of the two-thirds majority necessary to throw President Andrew Johnson out of office in 1867.

Now the House Judiciary Committee is preparing for another round of impeachment proceedings. Committee Republicans and Democrats alike are beefing up their staffs in anticipation of receiving a report from Starr.

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If Starr decides that he has evidence Clinton has committed an impeachable offense, he will send a report to the House “quickly, without regard to a political calendar,” said his spokesman, Charles G. Bakaly III, in a reference to this November’s congressional elections.

Judiciary Committee Chairman Henry J. Hyde (R-Ill.) made a similar commitment. “Whatever decision we make will be criticized as overly political, but we do have a duty to do that supersedes the political calendar,” he said in a recent interview with Hill magazine.

Speculation over what Starr will send to the House Judiciary Committee could prove premature. Although Starr has not spelled out his own position publicly, a constitutional scholar serving as his special consultant believes that a president can be indicted on criminal charges.

Ronald A. Rotunda, a professor of constitutional law at the University of Illinois, contends that the Supreme Court tipped its hand in a 1997 order dismissing Clinton’s attempt to postpone Jones’ sexual harassment suit until he is out of office.

“While Clinton vs. Jones thus establishes that a sitting president may be indicted and tried,” Rotunda wrote in Legal Times, “the court’s decision leaves the next, obvious question unanswered: Can a sitting president be imprisoned upon conviction for a criminal offense?”

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* WORKING WEEKEND: Clinton, his lawyers and advisors prepare for tough questions from Starr. A22

* CLINTON SCENARIO

Advisors say Clinton will testify to an ‘inappropriate relationship’ with Lewinsky. A25