Impeachment Case Puts in Doubt Basic Assumptions of Law

If the investigation and prosecution of President Clinton were all about “the rule of law,” as some would have it, the law emerged badly shaken.

The case against Clinton has called into doubt basic American assumptions about the law: that those who lie under oath will be punished; that prosecutors can be trusted to do the right thing; that law and politics are separate and distinct.

Clinton’s acquittal in the Senate is likely to confirm for some the cynical view that a powerful person can get away with crimes that would send an ordinary person to prison.

But independent counsel Kenneth W. Starr’s aggressive prosecution of the chief executive may have an even more direct impact on the law itself, and on prosecutors’ powers to enforce it.

Shortly after hearing allegations of Clinton’s affair with former White House intern Monica S. Lewinsky, Starr’s staff investigators questioned the young woman for many hours at a time when she was alone, without lawyer, relative or friend. Starr later called Lewinsky’s mother to testify before a grand jury against her own daughter.

Those episodes could provide the spark for what some legal experts say is a long overdue move to reform grand juries. Begun as a way to protect the accused from the power of the government, these secret panels have instead become mere rubber-stamps for prosecutors, critics say.

And in courtrooms around the country, jurors will be more skeptical of prosecutors and their motives now that they have seen Starr in action, other experts say.

But without doubt, the first casualty of the Clinton case is likely to be the law that set it all in motion. The Independent Counsel Act is due to expire in June, and lawmakers of both parties say they will either radically overhaul it or let it die a quiet death. Just last week, the American Bar Assn.--the lawyers’ group that first promoted the notion of independent counsels--recommended its abolition.

“Watergate and the impeachment of Richard Nixon spawned the Independent Counsel Act, and Ken Starr’s handling of this impeachment case will probably kill it,” said Georgetown University law professor Paul Rothstein.

Many Criticize Long, Costly Probes

And none too soon, say its many critics. To insulate special prosecutors from political pressures, they contend, the law gave them unlimited money and power and exempted them from normal checks and balances. The result has been a series of long, costly and intrusive investigations.

“There is nothing more dangerous than a prosecutor with too much time and too much staff,” said longtime Milwaukee County Dist. Atty. E. Michael McCann, a Democrat. “If you want to ruin a politician, you can always call him before a grand jury and force him to answer questions. Unlike others, he doesn’t have the option to refuse to answer. And then you can try to catch him in a lie.”

McCann said his office prosecuted 6,000 felonies and 25,000 misdemeanors last year with one-fourth of the $40 million that Starr has spent over five years on a single investigation.

During the Watergate era, the attorney general appointed special prosecutors to investigate the charges against Nixon.

In 1978, however, four years after Nixon’s resignation, Congress created a system for appointing prosecutors who were entirely removed from the Justice Department. When charges of wrongdoing are lodged against presidents or their top appointees, a panel of three federal judges picks the independent counsel, who then has an unlimited amount of time and money to pursue the allegations.

The law’s sponsors hoped it would shield these prosecutions from politics. But in an example of good intentions gone awry, the naming of independent counsels has itself become a major political battleground.

During the 1980s, powerful congressional Democrats demanded the appointment of a series of independent counsels to investigate officials of the Reagan and Bush administrations. During the 1990s, the tables have been turned, with the Republicans who now control Congress demanding prosecutors to look into allegations against Clinton and his appointees.

The result has been a troubling confluence of law and politics, said ABA President Philip S. Anderson.

“It could have a profound impact on trust and confidence in the rule of law if we allow politics to creep in,” Anderson said. “Throughout the history of this republic, we have believed that criminal law is enforced for the public good, entirely without regard to politics. It is essential to a free society to keep politics out of law enforcement.”

Local Prosecutors Could Be Affected

Popular disapproval of Starr runs so deep, many experts argue, that the stain on the independent counsel’s operation will spread to prosecutors at all levels and in all parts of the country.

“The people who will come out as the losers in this are the real, everyday prosecutors,” said Loyola University law professor Laurie I. Levenson, a former federal prosecutor. “When a defense lawyer stands up and argues the prosecutor has gone too far and abused his power, that will hit home with the jurors because they have seen it with Ken Starr. It’s easier to see the prosecutors as bad guys.”

She warned against letting the pendulum swing too far. “The prosecutors I worked with were not Ken Starr,” she said, “but they will bear the brunt of this.”

Denver attorney Larry Pozner, president of the National Assn. of Criminal Defense Lawyers, views the issue of prosecutorial power from the opposite perspective. He said he hopes Starr’s aggressive pursuit of the president has opened the public’s eyes to the potential for abuse.

“Nothing is more frightening than a prosecutor with a vendetta,” Pozner said. “He can demand to know who you slept with, what books you buy, what your friends say about you, what your mother says about you.”

Defense lawyers and some legal academics also have long called for a major revision of grand jury practices, which they complain give unfair advantage to prosecutors.

Prosecutors have the power to question witnesses alone in the presence of the grand jurors. The same questions can be asked over and over again, with no judge or defense lawyer to restrain the interrogation.

“Most people don’t realize that even if the prosecutor has evidence that might exonerate the accused, they don’t have to tell the grand jury about it,” Anderson said. ABA officials said they plan to present Congress with some proposed reforms in the grand jury system.

Changes also are being eyed at the state level. California Attorneys for Criminal Justice, which represents defense lawyers, has said it will seek legislation in Sacramento to protect parents from being forced to testify in court about their children.

The law in most states protects priests and psychotherapists from being compelled to reveal confidences. A similar privilege protects wives and husbands from testifying against each other, but the same is not true for parents and children.

The image of Marcia Lewis, Lewinsky’s mother, emerging from the grand jury may change that.

“For a parent to testify against your child has to be a wrenching, horrible experience,” said Santa Monica defense attorney Marcia Morrissey, a former president of California Attorneys for Criminal Justice. “Most parents can envision being put in that unpleasant position.”

The impact of the Clinton case on sexual harassment laws is unclear. In 1994, Paula Corbin Jones sued Clinton for harassment that allegedly occurred when he was Arkansas governor. Her case was thrown out of court last year, but was then appealed. Clinton recently paid $850,000 to settle the matter.

In 1991, the sexual harassment allegations lodged against Supreme Court Justice Clarence Thomas sharply increased the number of such lawsuits. The mixed outcome in the Clinton-Jones case is unlikely to bring many more victims to court.

Attitude Change on Crime, Justice

If the Clinton scandal is to have a long-term impact on the law, some legal thinkers say it might be in American attitudes toward crime and justice.

For nearly 30 years, most Americans have supported a get-tough approach to crime and law enforcement. Prosecutors have been given more power, and prison terms for criminals have lengthened.

But in the case pitting Clinton against Starr, the public seemed to sympathize with the defendant, said Georgetown law professor David D. Cole.

“My wildest hope is that when [Americans] see what a grand jury can do and what unchecked power prosecutors have, it will cause them to think twice” about their support for these policies, Cole said.

“We have understood the dangers of crime, but I don’t think we have always understood the dangers of giving more and more power to prosecutors and the police. And maybe, just maybe, this may encourage a serious effort to put some balance and fairness into the system.”