Starr's actions partisan, unconstitutional
By ANTHONY LEWIS
INDEPENDENT counsel Kenneth Starr intervened in the Senate trial of
President Clinton in a characteristic way. He acted in secret. He went to the
judge ex parte: without notifying the other side, the president's side, or giving it
a chance to oppose his motion.
Starr persuaded the judge to issue an order requiring Monica Lewinsky to
appear for questioning by the House Republican prosecutors of the president.
But he inadvertently did something else. He illuminated the profoundly
anti-constitutional basis of his position, and therefore of this impeachment
The Constitution has no provision,
in its impeachment clauses, for an
outside prosecutor to start the proc-
ess of removing a president from office. It has no provision for House
managers in an impeachment trial to use the fearsome powers of such a
Moreover, here is a prosecutor, a member of the executive branch, using
unlimited resources to help one party in Congress bring down a president of
the other party.
What could be a clearer violation of a fundamental principle of our
constitutional structure, the separation of executive and legislative powers?
A constitutional judgment has in a sense been delivered by the American
people. An overwhelming majority of the public disapproves of Starr's
conduct, as it does of removing the president from office.
I think that disapproval reflects a basic feeling that the process has
unfair as to offend our system.
Much as people disliked Clinton's sordid behavior in the White House, they
disapproved of the way he was trapped by Starr and the private wrong turned
into a political assault. They did not like Starr's abuse of Lewinsky, her mother
and other women.
In legal terms, the case that Starr's role violates the Constitution has
That is clear if one looks at the language of the 1988 Supreme Court decision
upholding the use of an independent counsel to investigate an assistant
attorney general, Theodore Olson.
Chief Justice William Rehnquist, writing for the court, said there was
violation of the separation of powers because "this case does not involve an
attempt by Congress to increase its own powers at the expense of the
The house managers' use of Starr is precisely such an attempt.
The Constitution allows Congress to have judges appoint "inferior" officials.
Rehnquist said an independent prosecutor was "inferior" because he could be
"removed by the attorney general." But now, at least, it is politically impossible
for Attorney General Janet Reno to remove Starr.
Moreover, Rehnquist said, the independent counsel "is empowered by the
to perform only certain, limited duties," and his office has limited tenure.
He "has no ongoing responsibilities that extend beyond the accomplishment
the mission that (he) was appointed for." To apply those descriptions to Starr
is to laugh.
When Starr intervened last Friday, I thought some Republican senators would
rise above party and express outrage at his intrusion into their constitutional
That they did not showed how cynically partisan this impeachment is. That
cynicism, well understood by the public, corrupts our politics.
Why did the House managers try the Lewinsky caper? They looked almost
shamefaced as they told the Senate they just wanted to meet her "to shake
hands, to say hello."
Sure, in the presence of prosecutors who can put her in prison for saying
The managers' move was in part one of desperation, a hope that something
just might turn up if she and other witnesses testified. And it pleased the
right-wing forces that are the source of so much Republican campaign money.
They want to do as much damage to President Clinton as possible.
That was Starr's objective in his campaign of leaks last year. It is the
of the attempt to have Lewinsky testify from the well of the Senate.
After the lawyers' arguments it is plain that the president has not committed
"high crimes." For all the Republicans' talk of "felonies," there is not a court in
the country that would allow the muddled perjury charge to stand.
The question is how and when this offense to the Constitution and common
sense will end.
Lewis is a columnist for The New York Times and Pulitzer Prize winner for
Attorneys take an oath to support and defend the Constitution of the United
States of America. Ken Starr has in our opinion violated his oath and
attempted the overthrow of a legal election. For this Ken Starr should be
removed as Special Prosecutor and disbared.
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