What’s Starr’s Rush? A Judge Is Watching

Did Kenneth Starr fold?

Suddenly, after months of stalemated bargaining, Mr. Starr welcomes the same old proffer of testimony by Monica Lewinsky-about sex, not perjury or subornation or conspiracy-that he had once summarily rejected. Suddenly, after months of rejected “invitations,” Mr. Starr issues a subpoena to the President and negotiates over logistics.

Whatever deal Ms. Lewinsky may make to win immunity, and whatever arrangement Mr. Clinton may make to give testimony, an intriguing question has been overlooked: Exactly why is the independent counsel rushing forward so abruptly on both fronts? The most likely answer may be found in recent news that Mr. Starr is trying to forestall contempt proceedings before Judge Norma Holloway Johnson-because their outcome could blow up his investigation and bring him and his deputies into disgrace.

The depth of Mr. Starr’s conflict with Judge Johnson over her probe of alleged leaks from his office is betrayed by his extraordinary request for a “writ of prohibition” from the District of Columbia Circuit Court of Appeals. Asking for such a writ against a Federal judge is tantamount to questioning her intelligence and integrity.

While Mr. Starr awaits a decision from a three-judge panel that includes his old friend, the ultraconservative Laurence Silberman, he is racing to finish his investigation. Before Mr. Starr appealed to the higher court, he faced a threat by Judge Johnson to force him and his deputies to answer questions under oath about the alleged leaks in the presence of Mr. Clinton’s lawyers.

She seems to have been considering a contempt citation against the independent counsel, based partly on Mr. Starr’s interview in Brill’s Content magazine. So Mr. Starr can no longer waste time pressuring Ms. Lewinsky into saying what he wants to hear, namely that she was induced to lie by the President or his friends. He must worry instead about the imminent prospect that his own alleged violations of Federal law regarding grand jury secrecy will be exposed.

Mr. Starr’s contempt problem may have worsened on July 27, when investigative reporter and author Dan Moldea went public with tapes of his conversations last winter with Starr deputies Hickman Ewing and Jackie Bennett. According to Mr. Moldea, those tapes prove that the Office of Independent Counsel regularly leaked information to sympathetic reporters-always with the approval of Mr. Starr himself. Although the independent counsel has previously denied the author’s charges, the Moldea tapes could now be presented to the judge as further evidence of selective leaking by Mr. Starr and his deputies. Having been insulted by Mr. Starr when he asked the higher court to overrule her, Judge Johnson might well be in a mood to listen.

As for the President, he must at last confront the quandary that has haunted him since the day Mr. Starr was appointed. He believes, with reason, that the independent counsel is in fact a partisan prosecutor on a mission to destroy his Presidency. Over the past six months, as Mr. Starr pursued a case that would never have been brought against an ordinary citizen, while embarrassing material poured out of the grand jury, events have confirmed and strengthened that belief to a point where most Americans share it.

As a lawyer, Mr. Clinton also knows that under ordinary circumstances Mr. Starr’s case would be deemed flimsy, unlikely even to survive pretrial motions let alone a jury verdict. With all due respect to grand theories about a massive obstruction conspiracy, the Lewinsky matter boils down to allegations of perjury during immaterial testimony in a dismissed civil case. Perhaps Mr. Starr has uncovered information that will redeem the dubious “talking points” and implicate the White House. Given his newly softened stance toward Ms. Lewinsky, it seems just as likely that he has not.

But an independent counsel need never persuade a judge or jury that he has proved a crime by the President beyond a reasonable doubt. He need only compile a report to Congress for consideration of impeachment, a process outside normal rules of evidence and procedure.

In other words, Mr. Clinton has fewer protections than any other citizen, not more. If he fulfills his obligation to appear before the grand jury, he is probably walking into a perjury trap that never would have been rigged for anyone else. He will be barraged with demands that he reveal his testimony, no matter how private or painful, again unlike any other citizen. And should he decline to do so, the leaks will commence .

Yet while Mr. Clinton may seek fair consideration of his duties and his dignity, he has so far made no special pleading to avoid a lawful subpoena. Many scholars say the Constitution demands that he answer Mr. Starr’s summons, and he seems prepared to do so.

Then the independent counsel at last will issue his report and gladly depart, leaving Congress to clean up after him. The Republicans will suffer Oscar Wilde’s curse of getting what they have wished for. The hard right will demand impeachment. The nervous moderates will stall. And on Election Day, the public may deliver a verdict-on them, on Mr. Starr and on Bill Clinton.

What’s Starr’s Rush? A Judge Is Watching