WHAT A MAGICAL SHAPE-CHANGING BEAST this independent-counsel law is! In its marauding two-decade-long journey through the American political landscape, it has revealed aspects of itself we poor peasants could never have imagined. Republicans and now Democrats have felt the fury of the creature, its quasi-immortality, its voraciousness, its single-mindedness in pursuit of its prey. But now, for the first time, it has given birth — to impeachment proceedings against the president in the House of Representatives. And only now are we learning of the peculiar sway it has on the minds of men. Republicans, perhaps mesmerized, came to believe that they could tame it, or at least let it do their work for them. But whether it serves them or they are its captives is an open question.
No one can say whether the impeachment of Bill Clinton will go as far as his conviction and removal from office at the hands of the Senate. But the view among the Republican leadership in the House is that after a Judiciary Committee vote and floor vote in October authorizing an impeachment inquiry, the committee will in due course (meaning after the November election) draft articles of impeachment and send them to the House floor, where they will be approved. The key question, as Republican leaders in the House see it, is whether Democrats will cry “partisanship,” stand united in support of the president, and vote against impeachment, or the issues — lying under oath, witness tampering — will be at the forefront, resulting in broader support for impeachment.
This consideration, for better or worse, is what lies behind the leadership’s frequently avowed concern for a bipartisan process. It’s important to keep the Democrats in the room all along the way if, at the end, there is to be any hope of getting some of them to agree that a president of their party should stand trial in the Senate. That, in turn, means making concessions to Democrats that some Republicans will find distasteful or unnecessary. In the GOP’s perfect world, the subject of negotiation between Democrats and Republicans at the end of the day is whether articles of impeachment will include, say, counts 1-7 or only counts 1,2,3, and 6.
The independent-counsel investigation of Kenneth Starr, while it has been barraged by Democrats’ charges of partisanship, has played a very curious role in this process. By law, the independent counsel must report directly to Congress any evidence of impeachable offenses he uncovers. When the Monica Lewinsky story broke in January, Democrats, mainly to avoid the request that they judge the president harshly, cited their determination to refrain from judgment until Starr issued a report, if he ever did. Republicans, by and large, said the same: Wait for the Starr report.
The Starr investigation, meanwhile, was proceeding (subject to the constraints only of court rulings) entirely on the schedule of the independent counsel’s office and in the direction Starr chose. Starr became, in effect, Congress’s principal fact-finder — but not subject to any direction or constraint imposed by Congress. So it is that the independent counsel is doubly independent — not only from the executive branch, the president, and his Justice Department, who are presumed under the terms of the law to have conflicts of interest that preclude them from conducting impartial criminal investigations of senior officials. But also, as regards evidence of impeachable offenses, from Congress — with what effect we have never had occasion to explore before.
Whatever noises Congress is now making about additional investigating, we are in fact a long way down the road to impeachment. And notwithstanding its constitutional authority, Congress — in particular, the congressional majority — has so far not had to lift a finger. Even though since January it has been abundantly clear that the independent-counsel investigation was zeroing in on the president’s own conduct with an eye toward the charges eventually made in Starr’s report. Even though, in other words, everybody knew that this amounted to a preliminary impeachment inquiry. The independent-counsel law perfectly positioned Congress to disavow all responsibility for it. Today, the prosecutor’s report is like a foundling child abandoned on the doorstep of Congress — the members may decide to adopt it, but they can always safely deny paternity.
This issue is worth a little alternative-universe exploration. Suppose there were no independent counsel statute, yet events had unfolded in Paula Jones’s lawsuit against the president in precisely the same fashion. Suppose, that is, that Linda Tripp had taken her Monica tapes to the Justice Department and the media. Or that she had dropped them off at Chairman Henry Hyde’s office at the House Judiciary Committee. Would we be where we are today?
Insofar as presidential lying under oath is serious, and so is cooking your story to obstruct justice in a civil case, we should be, and maybe we would be. But if we were, it would be as a result of an extensive, messy, vitriolic fact-finding inquiry by the Judiciary Committee. The White House, and presumably congressional Democrats, would have resisted it at every turn and raised holy hell over it in the process. Republicans would have needed to make an unprecedented show of political grit.
The independent-counsel law relieved them of that burden. In doing so, however, the law also deprived them of a certain trial by fire that would, at a minimum, have given them a keen sense of responsibility for advancing the process. Had Republicans pushed the inquiry on their own to the point at which it now stands, there would be little doubt among Democrats about Republicans’ determination to see it through. That doubt is the Democrats’ principal consolation at the moment.
It may or may not amount to much. But it seems fair to observe that the independent-counsel law is either one of the greatest congressional power grabs in history — a shortcut to impeachment, Congress’s gravest constitutional responsibility, as it keeps reminding us — or a cautionary tale about what happens when you don’t touch first base on the way home.