The National Review

NOTWITHSTANDING that the House voted to authorize an impeachment inquiry into President Clinton’s lies and obstruction only this October, the fact is that an impeachment inquiry has been underway since January. That’s when independent counsel Kenneth Starr sought and received the blessing of the Justice Department and the court overseeing his investigation to look into the President’s possible perjury and obstruction in the Paula Jones sexual-misconduct case. In essence, Starr began conducting a sort of preliminary inquiry on behalf of (but not under the supervision of) the House Judiciary Committee, where articles of impeachment will in theory originate.

Few made much of this aspect of Starr’s role at the time, unprecedented though it was. But he really was a walking hybrid. True, he had been investigating the Clintons and their cronies for several years in at least four broad areas, starting with Whitewater. But not until January did Bill Clinton land squarely in Starr’s sights: namely, in the spot where the target of a criminal investigation stands as prosecutors gather evidence and present it to the grand jury with the goal of indicting him.

But Clinton could not be indicted. Or, at least, most legal scholars doubted Starr could bring an indictment against a sitting president. So here was a criminal investigation complete with subpoena power and grand-jury secrecy and FBI agents with a gaping hole where its climax usually begins: indictment. Even more important, the provisions of the independent-counsel law under which Starr was appointed specifically require him to report to Congress if he obtains evidence of “impeachable offenses” by the President. The law does not specify what those offenses may be, nor does it say how quickly the independent counsel must make his report. But the requirements of the law provide for an abrupt and previously uncharted transformation of a quasi-prosecutorial inquiry into a political proceeding replete with majority-minority partisan clashes, worries about public opinion, and the inescapable backdrop of electoral politics.

To be sure, all the latter are unavoidable whenever Congress considers the impeachment of a president, regardless of whether an independent-counsel law is on the books; presumably, something like that is what the Framers had in mind by granting the power to impeach to the body most directly accountable to the people. What the independent-counsel law does, for better or worse, is allow the House to begin somewhere in the middle of the impeachment process, when a report detailing evidence of possible crimes arrives from the prosecutor.

The question is whether this shortcut in the process is helpful to the House in addressing the “high Crimes and Misdemeanors” of a president-or whether the independent-counsel law is not so much a shortcut as a short circuit, just a bright spark and a puff of smoke before the lights go out. How might events have gone differently in the Jones case had there been no independent-counsel law-and no tenacious Kenneth Starr dogging every scandal?

If President Clinton had settled with Jones in October 1997, before the name Monica Lewinsky ever came to the attention of the Jones lawyers, all the lurid tapes in Trippland would have left us with little more than a salacious sex scandal embarrassing to the President. Starr or no Starr, there would have been nothing for Congress to do. Had the Jones case been settled in early January, before Lewinsky filed a false affidavit and before Clinton gave any misleading or perjurious testimony on his relationship with her, the Tripp tapes would have revealed evidence of an effort by Clinton and Lewinsky to get their story straight-a false story. This would have been grist for editorialists on the question of Bill Clinton’s character, but in the absence of oaths to tell the truth, his and hers, it’s hard to see how there would have been much for Congress to take up.

Now, however, suppose the Tripp tapes had come to light after the Lewinsky affidavit and the President’s testimony, but in the absence of an independent counsel to pursue the investigation. We would have had, in essence, the germ of the Starr report-enough to think ill of the President on grounds of perjury, obstruction, etc. But who would have investigated? Janet Reno’s Justice Department? Not likely.

Note also that there would have been no cleanly obtained FBI wire of Lewinsky’s allegations. Tripp’s homemade tapes would have been subject to challenge on grounds of authenticity (and the legality of recording them under Maryland law would have been subject to swift investigation). Tripp’s character would have come under even more furious attack, and who knows what Lewinsky might have said? Might she have continued to deny the relationship?

Stayed mum? Surely the President would have been no less forceful in his false denials in the absence of an independent counsel than he was while being investigated by one.

This would, in short, have been exactly the circus it was in January, down to the last clown. In addition, there would have been another huge question bouncing around under the Big Top: What is anyone going to do about this? My guess is that the President’s cadre would have been asking that question in the form of a taunt. The President’s adversaries, for their part, would likely have demanded action from Janet Reno. The Jones lawyers would have screamed bloody murder, and rightly so, seeking relief from Judge Susan Webber Wright. But what about Congress?

Given the most serious evidence to date of perjury and obstruction by the President, would Congress have begun an investigation? If so, it would have been in the face of a blast from the White House about how a partisan witch-hunt of a lawsuit about sex had metastasized into a partisan witch-hunt of a congressional investigation about sex.

That would have been extremely tough going for Republicans, and they would have received zero assistance from Democrats. Would they have had the nerve to do the nitty-gritty fact-finding Starr undertook on their behalf, with interviews, subpoenas, and confrontations with the White House over everything from phone records to neckties? When the White House was telling them, as it surely would have, to get stuffed? With the President’s approval rating stubbornly fixed above 60 per cent?

There would have been internal pressure from the conservative wing of the GOP to proceed, to be sure. And the course of the Jones case, in the absence of the request Starr made to exclude the Lewinsky evidence in its entirety, might have been different, perhaps leading to further revelations and more pressure for Congress to act. But could the pressure for the GOP to investigate really have gathered sufficiently to prompt an inquiry that everyone would have recognized as a prelude to impeachment, given so many working so hard to prevent it? If the answer is yes, it is at best a whisker-thin call.

As matters actually stood, the congressional majority was able to stand aloof from such tawdriness and confrontation, deferring to the independent-counsel investigation. Yet impeachment, in the real world, is hardly a matter of aloofness, impartiality, and reservation of judgment. Members of Congress may posture to that effect, but they know that the real dirty work is being done at their behest and direction and under their detailed supervision by highly partisan staff. The people doing the heavy lifting on the Nixon impeachment proceedings weren’t impartial and disinterested. They, Hillary Rodham and Bernard Nussbaum included, were out to get Nixon. The independent-counsel law allows, at first anyway, the posture to be the reality. Let’s wait until we hear from Mr. Starr, Republicans said. But now they have heard from Starr. And if, as the proverb holds, a journey of a thousand miles begins with a single step, they took their first step round about mile marker 750.

We will be dealing with this fact for a long time to come, not only as the process now underway unfolds, but also as historians evaluate the confrontation between Bill Clinton and Congress. How necessary are those first miles of the impeachment journey? How appropriate or legitimate is it for Congress to skip them-to avail itself of the independent-counsel law in their stead? Does the necessarily legalistic focus of the independent counsel’s grand-jury investigation circumscribe the questions that, constitutionally, ought to be asked about “high Crimes and Misdemeanors” and the President’s fitness to serve? And in the long run, how important is the shadow cast by the independent-counsel law over the process of holding Bill Clinton accountable?