Poetic injustice

National Review, Feb 23, 1998 by Robert Bork

Bill Clinton may deserve an independent counsel, but the country doesn't.

William Jefferson Clinton, whose Administration has been marked, among other things, by an extraordinary streak of good luck, may be, much against his will, about to make a major contribution to our national well-being through sheer bad luck. Our President is being immolated on the altar of the ethics he promised. An Aztec priest, dressed in the garb of an independent counsel, hovers over him, obsidian knife in hand, ready to excise one portion or another of Mr. Clinton's anatomy.

Given the evidence and the man's past history, there seems no doubt that Clinton is guilty of something in the Monica Lewinsky affair. He is certainly sexually compulsive and a master of the coverup. Though this pattern began in Arkansas (Gennifer Flowers was telling the truth), the tactics of coverup, a/k/a obstruction of justice, continued and reached a crescendo in the White House years (the Travel Office, the FBI files, the rummaging through Vincent Foster's office, the flight of those witnesses who did not conveniently forget everything or take the Fifth Amendment, and so on, apparently ad infinitum.)

White House apparatchiks and the First Lady say the President is the victim of "a vast right-wing conspiracy." That the Administration is driven to such preposterous allegations is enough in itself to convict Mr. Clinton. It is to be doubted that a dozen members of the so-called "right wing" could manage to line up in alphabetical order. But the First Lady and the President's henchmen are engaged in the classic strategy of the guilty: if the facts are against you, argue the law; if the law is against you, argue the facts; if the law and the facts are against you, put the prosecutor on trial. Having mortgaged the integrity of her marriage in return for political power, Mrs. Clinton will fight to the last to receive her end of the quid pro quo.

The spectacle now unfolding is so heartening to those who always thought Mr. Clinton lacked character that many, including conservatives, are perceiving previously unsuspected virtues in the independent-counsel statute. They should not. It is a bad statute whatever the outcome of Mr. Clinton's travails. For a moment I rejoiced in the squirmings of the man who had promised us the most ethical Administration in our history. But the most obvious distinction between conservatives and the Bill and Hillary White House is integrity--which means adherence to principle, precisely when it is most tempting to depart from it.

It should matter that the independent counsel statute is patently unconstitutional. The Constitution vests the entire enforcement power in the President. But the Supreme Court in Morrison v. Olson upheld the law, lopsidedly, in a particularly wretched opinion. The Court said in effect that if the law left the President with much of the power over law enforcement, that was good enough.

In practical effect, however, the independent counsel is what the Democrats intended, an institutionalized wolf on the executive's flank. Past Democratic Congresses, supposing that Republican control of the White House had become the normal state of affairs, used independent counsels to assault the moral legitimacy of the Presidency. Men who carried out the President's policies or defended his constitutional authority were subjected to lengthy investigations, and sometimes trials, by prosecutors with unlimited resources whose sole mission was to convict. The in terrorem effect of the law is magnified many times over because the investigatee can recover part of his attorney's fees only if he is not indicted. If he is indicted, he must pay hundreds of thousands of dollars from his own pocket even if the indictment is eventually dismissed or he is acquitted at trial. Some men accepted plea-bargains simply because they could not carry on a one-sided financial war. The statute has become a powerful engine for injustice.

A system with so much politics, ego, and heavily disproportionate resources built into it requires, but does not always get, an independent counsel of moral strength and judicial temperament. Kenneth Starr is just such a prosecutor. He has proceeded with caution, and those who pleaded guilty to his charges (notably Webster Hubbell) or were convicted (Jim Guy Tucker, the then governor of Arkansas) were faced with overwhelming evidence. It is more than a little sickening to hear the charges leveled against Starr by the White House and its sycophants in the press. The main one seems to be that he is, heaven for fend, a Republican. That crime, according to James Carville, automatically makes Ken Starr a "bitter partisan." There was no liberal rage, however, when Archibald Cox, a liberal and a very close ally of Ted Kennedy's, was chosen to investigate Richard Nixon. Nor were there any protests when Lawrence Walsh, using his office in a blatantly political manner, went after Reagan and Bush appointees, even announcing indictments, which he knew to be barred by the lapse of time, of major Republican figures on the eve of the 1992 election. Mr. Starr, by contrast, has conducted himself professionally and without a credible hint of partisanship.