Injustice for All: the Clinton Paradigm

The president now stands beleaguered, and in his travails he is an instructive exhibit of what ordinary people face every day from the U.S. Department of Justice, whose almost limitless powers have been eagerly buttressed by Clinton himself. When the Lewinsky affair first broke, it seemed a fair bet that the president could play for time until his term expired. Yet look at him now. In a mere six months, despite the most resourceful lawyers and intrepid spin-doctors, Clinton’s legal barricades have been breached, just as any attorney with experience in the criminal bar could have predicted.

Start with the transactional immunity given by independent counsel Kenneth Starr to Monica Lewinsky and her mother, Marsha Lewis. Under the bargain to gain her immunity, Lewinsky agreed to answer questions and in the course of her responses reportedly touched on possible efforts to obstruct justice by Clinton and conceded that she had an intimate sexual relationship with the president. In return for this admission, which implies that the president perjured himself in his sworn denial of such intimacy, Lewinsky now essentially has immunity for any crime she may have committed in her life thus far. Transactional immunity is an all-embracing category.

Not only that. The prospect of Lewinsky’s testimony was so appetizing to Starr that he assented to her demand that her mother also be given transactional immunity. This was possibly no small gift, since Lewis, it seems, may have had a role in efforts to mislead government investigators. In other words, Monica’s promised testimony may have gotten her mother off a serious rap for obstruction of justice.

Most days in America, a prosecutor somewhere is offering someone immunity or a reduced sentence or financial compensation in return for testimony against targets of their investigations. Ever since confessions extorted by beatings were phased out in the early 1930s, these promises have become the prime lubricant of the justice system in this country.

Such prosecutorial promises have certainly become a constant feature of the war on drugs pressed relentlessly by Clinton’s Justice Department. The immunity deals have become so epidemic that the U.S. 10th Circuit Court of Appeals recently agreed with a defense lawyer that one such promise made by the prosecution to a witness against his client did indeed constitute an unlawful bribe. The entire bar is now awaiting the U.S. Supreme Court’s ruling on the matter.

To make her scheduled confessions, so damaging to the president, Lewinsky will go before a grand jury in Washington as the 70th witness called by Starr. As originally conceived, the role of the grand jury was to probe the merits of a prosecutor’s case. But long ago, it was established that grand juries have become rubber stamps for prosecutors. Rare is the grand jury in which there are citizens with enough tenacity and self-assurance to give the prosecution’s case unsparing scrutiny.

The president may insist that he be allowed to have his lawyer, David Kendall, present when he is questioned. Every day, ordinary people face prosecutors in grand jury proceedings without benefit of counsel.

Clinton and his supporters have vehemently protested Starr’s efforts to question White House lawyers such as Bruce Lindsey and have argued that this would be an unprecedented onslaught on client-attorney privilege. For ordinary people, such onslaughts have become ever more frequent, particularly in the war on drugs. James Inciardi writes in his excellent 1989 book: “Since the Tax Reform Act of 1984 requires attorneys to report cash payments of $10,000 or more, attorneys can be brought before a grand jury to testify about fees and other information that is privileged. In consequence, many attorneys don’t accept drug trafficking cases, with the result that the integrity of the 6th Amendment--right to counsel--has been jeopardized.”

Clinton is in a corner, though not a fatal one. Impeachment is still an extraordinarily remote contingency. But let him reflect, as should we all, that every day in America people with none of the president’s resources face the overwhelming arsenal available to prosecutors, most savagely at the federal level. We should at least hope that the 10th Circuit decision will begin to turn the tide.