Early last week, independent counsel Kenneth Starr announced that, come August 1, he would no longer be able to represent the United States of America in the Whitewater matter and associated investigations. He insisted his decision did not signal what such decisions usually signal: that the lawyer has lost faith in his client. In fact, Starr came close to saying he thought the country — because we have a “rule of law and not of individual men and women” — might actually be better off for his departure. In any case, his new client would certainly be better off, and could not be expected to wait for him more than another couple of months. Pepperdine University is opening a “brand-new school of public policy that will be admitting students for the coming academic year,” and it “needs a founding dean.” This is Kenneth Starr’s dream job, apparently, so much a “once in a lifetime opportunity” as to trump — in his own mind, at least initially — his present obligations.
Late in the week, after fierce public criticism, Starr reversed himself and pledged to remain at his post until his investigation and any resulting prosecutions of high officials are substantially completed. Good. The U.S. Circuit Court of Appeals for the District of Columbia did not hire the ” rule of law” embodied by the office Kenneth Starr administers. It hired him. And it hired him to make awesome ultimate decisions about the need for criminal prosecutions of high government officials — up to and including the president.
This is a precious trust to invest in a man, and having accepted the responsibility, he could not honorably jettison it — and certainly not out of preference for some nifty university gig in Malibu, California.
Unfortunately, Starr cannot entirely undo the damage he has inflicted on the Whitewater inquiry as a whole. Washington is now filled with speculation about the legal status of Bill and Hillary Clinton. Are indictments of them now more or less likely? When might they be issued? What did Ken Starr’s Pepperdine surprise mean? It’s guesswork, all of it. We’ll stipulate that.
But there are intelligent guesses to be made, just the same. This one, for example: Neither Clinton will be indicted before August 1, Starr’s original retirement date. We know that his office has for some time been studying an immensely long memo summarizing evidence gathered against the First Couple. The prosecutors seem to believe the evidence is insufficient for an indictment, and they seem to want additional corroboration from witnesses like former Clinton business partner Susan McDougal and former Clinton deputy attorney general Webb Hubbell. Mrs. McDougal is in jail on a contempt-of- court order for refusing to cooperate with the Whitewater investigation, and she quite plainly prefers to stay there. Hubbell, too, is in an uncooperative mood and appears prepared to risk a second prison sentence — he is now on parole from previous felony convictions — rather than provide additional evidence to the independent counsel.
So to capture these people’s testimony about other potential Whitewater defendants, the Clintons among them, the counsel’s office will have to seek charges and go to trial. Trials take time. Whatever mysterious pressure to keep silent Mrs. McDougal, Hubbell, and unnamed other principals already face will only intensify in the meantime. And they can only have been emboldened by last week’s events. Kenneth Starr himself has been tempted to throw in the towel on Whitewater. Anyone disinclined to implicate the Clintons would of course take heart from this revelation: Why not remain obstinately mum?
Yes, there are people enraged by the prospect of Bill and Hillary Clinton slipping the legal noose like this. We are not among them; Mr. Starr has disappointed us, but that’s not why. THE WEEKLY STANDARD would not welcome criminal charges against either Clinton, and we have never much expected them. Such charges would paralyze the nation’s public life for the duration of the Clinton presidency, a result surely to be avoided if at all possible. It’s not even clear, for that matter, whether the Constitution allows a sitting president to be indicted in advance of congressional impeachment proceedings. There has never been a Supreme Court ruling on the subject. The closest we’ve come is the decision in U.S. v. Nixon, when the justices decided the president had to turn over his tape recordings to special prosecutor Leon Jaworski — but nothing more.
Ah, yes: parallels with Richard Nixon. The comparison enrages the Clintonites. The criminal issues involved in Whitewater are undeniably serious. Counting guilty pleas and trial judgments, Whitewater has already produced twelve criminal convictions on multiple felony counts. It has metastasized into Travelgate and Filegate and Asiagate and who knows what else to come. But Watergate was worse, any Clinton partisan would argue. And at least insofar as publicly proven White House criminal culpability is concerned, that partisan would be right.
And yet. It took but two years for Nixon’s upper lip to sweat out the basic truths of Watergate. He could have destroyed his tapes. But he was too susceptible to shame, too afraid of history’s requirements, for that. What of our current president and his current scandal? We are almost five years into Whitewater, and the closest students of the subject know a lot — enough long ago to have concluded that this White House is essentially dishonest in a way even Dick Nixon’s never was. But we do not yet know enough to force beads of sweat onto Bill Clinton’s upper lip.
Clinton never sweats. Criticize his substantive politics, and he accuses you of personalized hatred. Criticize his personal or administrative ethics and character, and he accuses you of ideological and partisan hatred. In the president’s narcissistic imagination, his virtue is limitless, because there is no such thing as an objective reality that might impugn it.
And he will never freely offer us such a reality himself. No day any longer goes by in Washington without some fresh, scandal-related disclosure that directly contradicts something a senior administration official has said in the recent past.
Can anyone doubt that if Bill Clinton had Oval Office tapes, he would expect Bruce Lindsey to burn them? And that Bruce Lindsey would burn them? And that his entire tawdry crew of West Wing cronies would take the secret to their graves? Because their secret, whatever it may be, cannot be squared with the idea that Bill Clinton is perfectly good. So the secret cannot be true. Even if it is.
This is an unnatural philosophy, and an especially dangerous one in a democratic political order dependent on informed consent. We do not need to indict or impeach our president. But we do need to know what’s wrong with him and his wife and staff — the thing or things they are so obviously desperate to hide from us. And because they are hiding from us, we need the full power of our laws to smoke them out: subpoenas, grand juries, indictments, trials, convictions, and the full, final accounting of an independent counsel’s report as best he is able to write it.
At the beginning of last week, Kenneth Starr announced a move that would have delayed such an accounting and limited its scope and quality. Then he changed his mind. Perhaps he might still mitigate his blunder. But it was a bad week for the country, all in all.
David Tell, for the Editors
