HILLARY RODHAM CLINTON is eager to turn the public against Kenneth Starr, the independent counsel, for the obvious reason that he might be intimidated and back off. But there’s a less obvious reason, too. The public’s view of Starr would be enormously important in either of two eventualities: a decision by President Clinton to fire Starr or a presidential pardon of those accused (or already convicted) of crimes. These possibilities may now seem far-fetched, but they’re worth contemplating as this strange sex-and-perjury story unfolds.
The independent-counsel law provides for the removal of a counsel for, among other things, “good cause.” And Mrs. Clinton’s attacks lay the basis for just that. She has labeled Starr a “politically motivated prosecutor” who has spent four years “intimidating witnesses [and] doing everything possible to make some accusation against my husband.” “Good cause” would mean abuse of power, in the sense of a prosecutor’s using illegitimate means (such as the intimidation of witnesses) to generate accusations of criminality. This is something for which ordinary prosecutors can in fact be removed. While the law provides for judicial review of the removal of an independent counsel, it is probable that Clinton would prevail in the courts, if only because he/s president.
Removing Starr, however, might prove practically difficult, and, in any event, it would not bring any part of his probe to a halt. Under the independent-counsel statute, it is the attorney general who would actually have to remove Starr. And Janet Reno might carry out the president’s order even if she were at odds with it. On the other hand, she has had reasonably amicable relations with Starr and his office — indeed, she agreed to seek an expansion of jurisdiction in the Lewinsky matter — and she might find herself in such serious disagreement with the president that, as in the Saturday Night Massacre 25 years ago, she would quit. In that event, the deputy attorney general, Eric Holder, would have to decide whether to do the deed. Should he also refuse, the responsibility would fall to the next in line. Sooner or later, of course, somebody would be found to do the president’s bidding.
With Starr banished, however, the panel of judges that appointed him would name an acting counsel, as the statute provides. In all likelihood, that counsel would be one of Starr’s deputies. And as in Watergate, the investigation would continue, on all fronts.
That is why the more likely of the two remote possibilities mentioned above is the exercise of the pardon power, which under the Constitution belongs entirely to the president. Congress may not regulate its use, nor may the judiciary intervene. A pardon may be granted even before an indictment is handed up, thus denying the government jurisdiction. Using the pardon power, Clinton could insulate his friend Vernon Jordan and other targets of Starr’s probe. He could also nullify the prosecution of Susan McDougal, who remains in jail for contempt for her refusal to testify about the Clintons. (McDougal’s resolve not to testify may rest in part on her belief — encouraged by remarks the president made in 1991 — that Clinton will eventually pardon her.) Though pardons would not put Starr out of business, they would subtract from his investigation significantly.
Doubtless, there would be those in Congress who would regard such uses of the pardon power as corrupt, and grounds for impeachment. Republicans still control both houses. But given their often timid exercise of power, whether they would decide to take on the president in this scenario is an open question. If they thought that public opinion were on the president’s side, they would be especially loath to step up.
We are, needless to say, getting well ahead of the story. For now, there is only an intense Democratic attack on Starr. The leaders of the organized bar don’t seem to mind. Apparently, it’s okay with them for Mrs. Clinton to throw out reckless charges — what is her evidence for “intimidating witnesses”? — and to mouth canards such as that North Carolina senators Lauch Faircloth and Jesse Helms “appointed” Starr. In fact, the three-judge panel — of which one member, another North Carolinian, is a friend of those senators — appointed Starr. The other two members were appointed by Presidents Johnson and Nixon. And a judge named by President Carter, Harry Edwards, is the one who rejected the argument that the panel, in its selection of Starr, had been improperly influenced.
But that hasn’t stopped Hillary Clinton.
Terry Eastland is publisher of the American Spectator and a contributor to Forbes Digital Tool.
