For those who believe that the 2004 election was stolen by George W. Bush, Karl Rove and an unholy alliance of party operatives and voting-machine impresarios, a 75-year-old Democratic congressman from Detroit has emerged as the last best hope for American democracy. Almost alone in official Washington, Rep. John Conyers has insisted that the nation understand — and then correct — the problems that plagued the 2004 vote.
With little attention from the media and little support even from members of his own party, Conyers has launched his own probe of the 2004 election. His early conclusion: There may not have been an active conspiracy to suppress the vote and steal the election, but all those problems in Ohio — the long lines in Democratic precincts, the voting machines that may have switched votes, the suspicious actions of a voting-machine company representative, the trumped-up concerns about terrorism in Warren County, the Republican-friendly rulings by the state election official who also happened to chair the Bush-Cheney campaign — well, those things didn’t all happen by accident, either.
“You know, orchestrated attempts don’t always require a conspiracy,” Conyers told Salon on Monday. Conyers said that Bush’s supporters in Ohio may have worked to suppress the vote based on cues rather than orders from party officials. “People get the drift from other elections and the way [campaign leaders] talk about how they’re going to win the election.”
Conyers isn’t looking to overturn the election, and he won’t say that the Republicans stole it; coming from a member of Congress, such an allegation would be “reckless,” he said. But neither is he willing to put the election of 2004 behind him yet. This is the second presidential election in a row in which Republicans have succeeded in suppressing the vote, Conyers said, and he wants to ensure that the system is changed so that it won’t happen again. He’ll continue his investigation, he’ll join the Rev. Jesse Jackson in a protest rally in Ohio on Jan. 3, and when the new Congress meets in January he’ll push for further investigation and reform.
Conyers spoke with Salon by phone from Detroit.
Your first public forum on the 2004 election was called “Preserving Democracy: What Went Wrong in Ohio?” Do you know the answer to that question yet?
Well, dozens and dozens of things went wrong. It depends on what part of the state we’re going to examine. In Hocking County, a private company accessed an election machine and altered and tampered with it in the absence of election observers. It disturbed a deputy chair of the election in the county so much that she has given a sworn affidavit that has been turned over to the Federal Bureau of Investigation, and we’re in the process of running that down. But what about in Cleveland, Ohio? There, thousands of people claimed that their vote for Kerry was turned into a vote for Bush. Poll workers made mistakes that might have cost thousands of votes in Cleveland. And in Youngstown, machines turned an undetermined number of Kerry votes into Bush votes as well. Provisional ballots were thrown out. There were several conflicting rules. There was mass confusion. In Warren County, they talked about [the possibility that] terrorism might close down the election. I mean, please.
What we’re doing, understand, is we’re collecting the complaints, the grievances, the outrages, the indignities that people suffered, and then we’ve got to process them to find out what is valid and what needs to be further examined and what needs to be tossed out. It’s not like every complaint is one that has to be counted. What we’re trying to do is make the system better.
Do you believe that there was an orchestrated attempt to steal the election?
Well, you know, orchestrated attempts don’t always require a conspiracy. People get the drift from other elections and the way [campaign leaders] talk about how they’re going to win the election. When you have the exit-polling information discrepancies that occurred in 2004, where the odds of all the swing states coming in so much stronger for Bush than the exit polls indicated — they say that that is, statistically, almost an improbability.
[People] are saying, “No, no, no, that doesn’t mean much.” But it means a lot. It feeds this growing, [but] not provable feeling among millions of Americans that this was another unfair election.
Do you have that feeling?
Sure, I have a feeling that whenever we can come across ways to make elections fairer or work better or improve the process or simplify the regulations or make voting more available to people who have language problems or disabilities, we have a responsibility to do it. We’re trying to improve the system. I’m not trying to attack the outcome. What we need is a system where there are only a few of the kinds of the tens of thousands of complaints that we already have.
Do you believe the outcome of the election would have been different if it had been conducted more fairly?
I have no way of saying that because this gets into conjecture. I make one conjecture and somebody else makes a counter conjecture, and where are we? We’re all, “This is what I think.” I’m not as concerned about what I think as I am about what people told me went wrong on Election Day that we in Congress, especially the Judiciary Committee, have the responsibility to correct.
But is there any real chance that anything will be corrected? The entire nation was focused on the problems with the electoral system in 2000, yet very little seems to have changed. If meaningful reform didn’t come then, how can anyone expect it to come now?
I thought that the Help America Vote Act would improve things dramatically. And although it helped in places, the provisional ballot [process] was misinterpreted. We couldn’t get all these private companies to come up with a paper trail on their machines. And with the precinct machines, there was quite a disparity in the conservative counties in Ohio as opposed to the Democratic areas where there were only a few machines.
Republican precincts had plenty of machines, and people could vote quickly.
Instantly, yeah. And we had people waiting for hours only miles away.
So what comes of all of this?
First, we’ve got to collect the complaints. Second, we’ve got to investigate them and bring forward the ones we’re willing to stand by. And then we have to examine how we correct them. There needs to be, generally stated, more federal regulation over presidential elections. There are just way too many differences, from not only state to state but also county to county.
So far, which complaints are you willing to “stand by”?
It’s not a matter of my claiming ownership over the complaints. I’m just doing my job. If all of them are valid, that’s what I’m going to present. If half of them are valid, that’s what I’m going to present. I’m not going forward with complaints that don’t reach the level of believability or credibility.
The complaints you’ve described in this interview — do they meet that level of believability and credibility?
Oh yes, and plenty more reach that level. So we’ve got a problem. Many people in the media are saying, “Look, the election’s over, and yes, we had problems.” It’s like many people are just taking this. Then we have the hundreds of thousands of people who are outraged and supportive of me for carrying on and trying to make sure we get to the bottom of all these grievances that have been brought forward.
We’ve received e-mails from hundreds of those people, and many of them seem certain that the election was stolen, or at least that the outcome would have been different if the election had been more fair.
Sure.
But you’re not there yet.
Well, no, that’s not why I’m doing this. I’m not trying to get there. I’m trying to do the kind of job that people will say, “I think the congressman and those working with him are going about this in a fairly impartial, effective manner” — and not that they’re coming in as thieves trying to upset the election result. To me, that would not be what I’m in Congress to do. I mean, I would be doing this if it were just the reverse. A fair election process applies to everybody — Democrats and Republicans, conservatives and liberals alike.
Four years ago, when it came time for Congress to certify the election results, a number of House members rose to protest the certification of the Bush electors from Florida. Not a single member of the Senate joined them. Do you expect the same thing to happen this time around?
No, I think the Senate is going to go along with an inquiry this time. I don’t think they would embarrass themselves to let this happen two times in a row.
Has any senator said to you that he or she will call for an inquiry?
No, I haven’t talked with a single one. I’m not citing somebody who I know is going to do it. I’m not aware of anyone. I just don’t think the Senate would get caught in that position.
You haven’t exactly enjoyed a groundswell of support from other members of Congress. Are there Democrats in Congress who support what you’re doing but won’t come forward and say so publicly?
Well, there are Republicans who support what I’m doing who haven’t been willing to come forward. Look, calling for fair elections is not the most radical thing in the world. We’re not positing some revolutionary theory here. We’re asking that the people who complained be given a fair hearing.
Have any Republicans actually told you that they support your efforts?
I’d rather not comment on that.
Are you surprised that none of them have said so publicly?
No, not really. If you had a majority leader like theirs, you’d probably think twice about it yourself.
What about the Democratic leadership? Harry Reid, the new Senate minority leader, says he’d rather dance with Bush than fight him. Should the problems in Ohio change the way Democrats in Congress think about accommodating Bush in his second term?
Well, I’m not sure how much accommodation is going to happen. I listen to Bush talking about “reaching out,” which he talked about the first time, and we had the most divided federal system in memory. And now those kinds of phrases are being tossed about during the Christmas holiday again. Please. I don’t put much stock in it.
Bush billed himself as a “uniter, not a divider.”
I keep reminding myself of what he said. He sure didn’t unite anybody I knew of.
And what about John Kerry? Have you spoken with him about your investigation?
His lawyer was in Columbus for our hearing there last week. And he has also, at the same time, asked for a full recount in Delaware County [Ohio].
Has the Kerry campaign done enough? A lot of Democrats think Kerry conceded too soon.
It’s easy to be in an armchair somewhere saying, “You’ve got to do this; you’ve got to do that.” He had more in his control. And besides, he’s the candidate. I wish he’d listened to me more, and everybody wishes that the guy they voted for would listen to them more. But he’s the master of his ship.
When you say that you wish Kerry had listened to you more, do you mean during the campaign or in the days after the election?
During the campaign and after.
What do you wish he were doing now?
I don’t want to go into all of this “shoulda, coulda, woulda.” I think it takes our focus off the fact that we had far too many grievances and misfires in this election that have to be corrected.
But you don’t believe that those problems were the result of a concerted effort by the Republican Party or the Bush-Cheney campaign? You think people who wanted to see the president reelected just got the message somehow that they were supposed to do the things they did?
People didn’t have to get a message. If you use questionable tactics and generally attempt to suppress the vote — that’s what the Republicans’ strategies were all about: “How do we limit the vote?” Because the more people who voted, the more imperiled they felt they would be. And from that kind of an assumption, you can get a whole lot of activities that might not meet the smell test.
Because people on the ground understand the overall strategy and then take it upon themselves to engage in whatever conduct they think will help?
That’s what frequently happens, and usually does.
Do you believe that Ohio Secretary of State Kenneth Blackwell did that? Do you think he acted with the intent to suppress the vote?
I know that Kenneth Blackwell made some decisions that were blatant and outrageous for a secretary of state. How he felt that his head was big enough to be chairman of the “Re-elect Bush” committee and also head of the administration of the electoral vote for the president in that same state was beyond me.
Is that the sort of issue that you hope to address through legislative reform?
Oh, good night, yeah. There are very few people who did what he did.
Do you think you’ll ever be able to prove that there was a coordinated effort to steal the election?
We’re not trying to prove that. This is what we’re discussing: We’re trying to improve the situation wherever we can to make a better voting system in the states.
But a lot of the people who support your efforts desperately want you to prove that there was a conspiracy. If the e-mails we get are any indication, a lot of them believe that the existence of a conspiracy has already been proven.
Well, you know, a citizen’s point of view may be different from a federal lawmaker’s point of view. The citizens are entitled to form their own opinions. They can assert that easily. A member of Congress, the ranking member of Judiciary … I can’t make those assertions without proof. That would be reckless.
So you don’t make them.
No, I don’t.
What do you do?
We pass laws. We make laws and we try to correct the system through the legislative process.
And what conclusions have you reached about how the system can be fixed?
Everyone is beginning to reexamine the appropriateness of the Electoral College. We realize that provisional balloting needs to be streamlined and simplified. We know that there should be paper trails in computers. We’re beginning to wonder if we haven’t privatized the electoral system so that the computer tabulators can do more and know more than the electoral commissions of the counties themselves.
In the meantime, what do you say to all of the people who believe in their hearts that our democracy is broken and that the election was stolen?
I ask and invite everybody to turn in any evidence that they want that helps proves whatever position they believe, or even a position they don’t believe. But this isn’t a hunch and suspicion game. This is very serious business. Either there were defects so numerous and so plentiful that we had a faulty election, or we had an election that had these defects [but they didn't alter the outcome of the election]. And as we go forward with trying to improve the process, my whole objective is not to change the election result but to try to improve the process itself.
Rep. John Conyers, D-Mich., stepped up the political attack on the Bush administration when, last weekend, he called for an independent investigation into President Bush and Vice President Cheney’s business dealings before they came to the White House, a call he reiterated Thursday night on CNN’s “Crossfire.”
So far, Conyers is standing alone. Democrats have yet to follow the congressman’s lead and, in fact, other Democrats have backed away from Conyers’ comments, eager to criticize Bush and Cheney’s ties to big business, but hesitant to reignite the constant independent investigations that came to define the Clinton years. At least for now.
No other Democrats have echoed Conyers’ call for an independent investigator to look into Bush’s Harken/Rangers deal, but many seem to be testing the waters to see if the public would embrace such investigations. Democratic National Committee spokesman Bill Buck said the president should allow the Securities and Exchange Commission to release its file from the commission’s 1991 investigation of Bush for possible insider trading of Harken stock. “If Bush released his Harken documents and there was nothing there, it would give him a lot more credibility when he talks about corporate crime,” Buck said.
But Buck backed away from a call he made in an earlier Salon story, when he said a special prosecutor should take over the SEC’s investigation of Cheney. When asked about the SEC’s Halliburton probe then, Buck said it was “of serious concern that the SEC, an agency which sits under the vice president, would be called on to investigate. For the sake of investors in Halliburton and confidence in the system, there should no doubt be an independent investigation.”
But given the chance to reprise that call this week, Buck demured. His hedging shows just how cautious some Democrats are being as election season officially begins. There is a danger, Democratic strategists say, in becoming too shrill, or making the attacks on the administration too personal.
“Shrill and personal” does not seem to be a concern for Al Gore, who has called for the resignations of SEC Chairman Harvey Pitt and the entire Bush economic team, accused Bush budgeters of “doing essentially the same thing as Enron” by raiding the Social Security Trust Fund, and accusing Bush and Cheney of lying to the American people.
Thursday, in his first return to Capitol Hill since Bush’s inauguration, Gore too stopped short of calling for an independent investigation, but called Pitt “a continuing embarrassment to the administration.” He also suggested the administration’s influence over Pitt could prove damaging. “President Bush announced that the SEC will clear Vice President Cheney,” Gore told about 500 members of a Democratic youth group. “I’m sure Mr. Pitt made note of that.” But Gore did not go any further, and through his spokesman Jano Cabrera declined to answer further questions.
So has Conyers’ trial balloon gone over like a lead zeppelin? A Conyers spokeswoman says her boss was acting on his own when he made the comments. But, she added, Conyers would not be surprised if other Democrats take up the call for a special counsel as the election season gets underway. “I think everyone’s been wrapped up in closing the business of the year,” said Conyers spokeswoman Dena Graziano, referring to the congressional recess, which begins Saturday.
Conyers himself is certainly not backing away from his comments. “I am not calling for a special prosecutor. I am calling for a special counsel which can be appointed by any secretary or head of SEC, like Mr. Pitt,” Conyers said Thursday night. “It would relieve Mr. Pitt from the allegations of all the people he represented in the business world that would likely be coming up under review. It’s a good way to get some of the partisanship out of the investigation.”
It’s hard to imagine Conyers’ call as reducing the amount of partisanship. In fact, the White House accused the Democrats of rabid partisanship, sprinting for the moral high ground Bush sought during the 2000 campaign when he promised to “change the tone” in Washington. “Oftentimes, scandal-obsessed D.C. is out of touch with solution-seeking Americans,” said White House spokesman Jimmy Orr. “This administration is focused on getting results and rebuilding confidence in our economy.”
Democrats must also be wary of a counterattack, which explains the hedging by many on how far to take the Harken and Halliburton issues. “People are probing right now,” said one Democratic strategist. “They’re sort of waiting to see what’s going to stick. And while there are certainly some legitimate questions to be raised, Democrats know all too well what happens when the America people think you’re attacking the other side unfairly.”
A spokeswoman for the Democratic Congressional Campaign Committee said Cheney and Bush’s corporate pasts may be relegated to part of the subtext of Democratic campaigns in 2002, but was unsure whether they would become explicit campaign issues. “They provide developing story lines that serve as strong reminders of a bigger theme,” said DCCC spokeswoman Jenny Backus. “While Democrats may not be making a direct linkage [to Halliburton and Harken], it contributes to the white noise that’s already out there.”
Democrats point to recent polls as proof that the issue has had an impact. A round of surveys released last week shows Bush’s vulnerability on the economy. While his personal approval ratings remain high, a CBS/New York Times Poll from July 13-16, for instance, found nearly 60 percent of Americans saying think the economy is worse off than it was when Bill Clinton left office, and nearly half who say the country is on the wrong track. Less than 20 percent of those polled said the president is telling the truth about his old business dealings.
“I think it raises the question of what we always thought about Republicans,” said Democratic political consultant Peter Fenn. “We’ve got the Texaco Twins here in the White House. We’ve got the boys from big business. I think the question is how much gets personalized to Bush and Cheney, because they’re not answering the questions.”
Fenn is one of the Democrats who says his party is going too soft on Bush and Cheney, and should make a bigger stink about Halliburton and Harken in the fall. “If this were the Democrats, if this were Al Gore or Joe Lieberman or Bill Clinton, O’Reilly and Hannity and Colmes — everyone and their friggin’ brother — would be all over them like a blanket,” said Fenn. “The Republican leadership in Congress would be calling press conferences every two seconds. But we don’t have a Bob Barr.”
Conyers may be the closest thing Democrats have to a member with a strong partisan bent and power to match. The other persistent thorn in the administration’s side has been Rep. Henry Waxman, D-Calif., ranking member of the House Government Reform Committee, who has made a very public display of deriding Cheney’s attempts to keep documents from his energy task force out of the public eye. But on the issue of whether there should be an independent probe into Halliburton or Harken, Waxman has been mum.
“He has not called for anything like an independent investigation yet,” said Waxman spokesman Phil Schiliro. When asked if the “yet” was an operative one, Schiliro clarified: “I don’t think he’ll be doing that any time in the near future.”
In the midst of the impeachment hearings, Rep. John Conyers, D-Mich., gazed across the House Judiciary Committee and spoke to the “21 or so moderate members” of the House who were not in the room, but who will determine whether President Clinton faces impeachment when the House votes as scheduled next week. The hearings had been all about points of law and points of Monica Lewinsky’s body, but Conyers wanted to talk religion.
“Perhaps it will take an epiphany so we don’t go off a cliff,” the liberal Democrat from Detroit and ranking minority member said in his pleading, plaintive tones. “Is that too optimistic?”
But as the week of hearings came to a blessed end and President Clinton once again tried to mollify his critics with a brief speech to the nation Friday afternoon, religious awakenings were not on the minds of political operatives in the White House and on Capitol Hill. Nor were points of law and definitions of perjury.
“Law has very little to do with this now,” said a White House aide. “We’re running a boiler room, trying to get votes.”
The battle was not for votes among the 37 members of the House Judiciary Committee. Long before the four days of hearings, it was clear that the 21 Republicans on the committee would vote in favor of articles of impeachment, and the 16 Democrats would vote against them. Clinton knew that. He spoke for a few minutes just after 4 p.m. in the Rose Garden; minutes later the Judiciary Committee started churning out articles of impeachment on party line votes.
It was no surprise that the president’s quickie speech would have little impact on the Judiciary Committee, but his words seemed to fall flat across Capitol Hill. Before the president decided to address the nation for the second time about his dalliance with Lewinsky and the ensuing scandal, there was tension and disagreement throughout Washington about what he needed to do. When he announced his fairly impromptu speech, no one knew what he would say: Would he admit to lying to his wife, to his friends, to his aides, to the nation? Would he admit to perjury, as the Republicans seemed to want? Would he beg for forgiveness?
None of the above. Clinton used his precious moment to say he was “profoundly sorry for all I have done in words and deeds” and said he could accept “rebuke and censure.”
Unfortunately, the issue at hand is impeachment, and from all indications he failed to sway the crucial moderate Republicans.
Aides said Clinton was trying to get through to the American people and sway Congress through public opinion polls. But the polls are already solidly in Clinton’s favor, so that strategy seems doomed to fail.
This struggle for votes has shaped up to be a battle between the White House and Majority Whip Tom DeLay of Texas, an implacable Clinton hater. Incoming Majority Leader Robert Livingston of Louisiana, who will take over from Newt Gingrich in January, has taken himself out of the fray — for now.
“DeLay is acting as speaker at the pleasure of Livingston,” says a Democratic House member. “He’s hiding behind DeLay.”
At week’s end, vote counters in DeLay’s office and the White House basement were trying to finger 10 or more moderate Republicans. Among them were Constance Morella from Maryland; New Yorkers Benjamin Gilman, Sherwood Boehlert and Rick Lazio; Nancy Johnson from Connecticut; John Porter and Ray LaHood from Illinois; Jim Leach from Iowa; Minnesota’s Jim Ramstead and Deborah Price from Ohio.
“That pool’s in play,” says one of Clinton’s aides.
The balance of power shifts almost hourly. Thursday, Clinton was said to need only five more votes, and the likely candidates included Morella, Gilman, Boehlert, Johnson, Porter and Lazio. But on Friday the White House was working hard on as many as 20 members, with no one sure of the accurate vote count for and against the president. Political operatives on Capitol Hill and at the White House predicted the impeachment vote could hang on one or two votes. “And we’re not going to know until the actual vote,” said a White House aide.
DeLay, a gritty political enforcer, controls Republican campaign funds, and he was prepared to use them to convince undecided members to vote for impeachment. His ties to the Christian Coalition could also be brought to bear on reluctant moderates.
By late Friday DeLay had yet to make contact with Morella, who represents the Washington suburb of Montgomery County, Md., where liberal Democrats have voted her into office time after time. But former Rep. Geraldine Ferraro had been playing phone tag with Morella for a few days.
“My guess is that Gerry Ferraro is calling on behalf of the White House,” said Morella’s press secretary, Mary Anne Leary. Calls to Morella’s office were running 3-2 against impeachment, but Leary said Morella wouldn’t make up her mind until the day of the vote.
Besides calls from Ferraro and other former congressmen or business and union leaders, the White House actually has few political tools to twist Republican arms.
“It’s hard to shower Democratic campaign funds on members of the GOP,” says a House aide. “And a new post office looks too much like a straight bribe.”
There are trips with the president. Clinton has invited Lazio and a few other Republicans to accompany him to the Middle East this weekend. And as the day of the impeachment vote neared, some in the White House started to resort to the “scorched-earth” tactics of seeding the media with compromising stories about top Republicans, such as Judiciary Committee Chairman Henry Hyde and chief counsel David Schippers. But the media didn’t seem to be taking.
Then there are public opinion polls, where the Republicans continue to take a beating. But those polls seem not to be swaying Republicans, who have almost two years before they have to face voters again.
First lady Hillary Rodham Clinton is still the White House’s best weapon. Her popularity is much higher than the president’s. Her photograph is about to grace the cover of Time as Woman of the Year. As her husband delivered his last-ditch speech, and the Judiciary Committee started to vote out articles of impeachment, the first lady was in California to give a few speeches and fetch daughter Chelsea for this weekend’s trip to the Middle East.
Aides refuse to comment, but it’s safe to say that when Hillary Clinton returns to town on Tuesday, she’ll be working the Hill hard to keep her man from being tossed out of the White House.
The second day of the White House defense brought passionate testimony against impeaching the president from legal experts, including former Massachusetts Gov. William Weld and Clinton counsel Charles Ruff before the House Judiciary Committee. Here are the highlights of the day’s hearing:
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Charles Ruff, White House special counsel
“The president knows that what he did was wrong. He has admitted it. He has suffered privately and publicly. He is prepared to accept the obloquy that flows from his misconduct and he recognizes that, like any citizen, he is and will be subject to the rule of law. But, Mr. Chairman, the president has not committed a high crime or misdemeanor. His conduct, although morally reprehensible, does not warrant impeachment, does not warrant overturning the mandate of the American electorate.”
“It is within your power — even if hesitantly exercised — to decide that even though there is insufficient proof to establish that the president committed perjury, he nonetheless should be impeached. But I suggest to you that even then our oft-criticized legalisms are relevant to you. They are relevant because they were not just dreamed up by scheming lawyers looking for a good closing argument. Instead, they reflect the judgments of lawyers and judges, and yes, legislators through the centuries that we must take special care when we seek to accuse a witness of having violated his oath.”
“We will not drag the committee into the salacious muck that fills the referral. Instead, let each member assume that Ms. Lewinsky’s version of the events is correct, and then ask, ‘Am I prepared to impeach the president because, after having admitted having engaged egregiously wrongful conduct, he falsely described the particulars of that conduct?’”
“The president did not obstruct justice; he did not tamper with witnesses; he did not abuse the powers of his office. The referral’s overreaching claims of impropriety are themselves but an attempt to lend artificial weight to allegations of perjury that standing alone the independent counsel knew could not support the result for which he has been such a zealous advocate.”
“I suggest to you that any fair-minded observer must conclude that the great weight of historical and scholarly evidence leads to the conclusion that in order to have committed impeachable offense, the president must have acted to subvert our system of government. And, members of the committee, that did not happen.”
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Ronald Nobel, New York University associate law professor, former assistant secretary of the treasury for enforcement and undersecretary of the treasury
“A federal prosecutor ordinarily would not prosecute a case against a private citizen based on the facts set forth in the Starr referral.”
“Indictments and impeachment that results in acquittal ought to be avoided where possible. No prosecutor would be permitted to bring a prosecution where she believed that there was no chance that an unbiased jury would convict. Almost no one in this country believes that the U.S. Senate will convict the president on any potential article of impeachment. Members of Congress should consider the impact a long and no doubt sensationalized trial will have on the country, especially a trial that will not result in a conviction.”
“Federal prosecutors and federal agents, as a rule, ought to stay out of the private sexual lives of consenting adults. Neither federal prosecutors nor federal investigators consider it a priority to investigate allegations of perjury in connection with the lawful, extramarital, consensual, private, sexual conduct of citizens.”
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Richard Davis, Watergate prosecutor
“I do not believe that a case involving this kind of conflict between two witnesses would be brought by a prosecutor since it would not be won at trial. A prosecutor would understand the problem created by the fact that both individuals had an incentive to lie — the president to avoid acknowledging a false statement at his civil deposition and Ms. Lewinsky to avoid the demeaning nature of providing wholly unreciprocated sex.”
“The federal criminal justice system is not designed or intended to enforce a code of moral conduct. That’s not what we do, or what I used to do, and what the good federal prosecutors do. I’m not saying you can’t find an errant one somewhere that will bring charges, but so far as I know, this would be totally unprecedented if such a case were brought.”
“Apart from issues of censure, we live in a democracy, and one sanction that can be imposed is by the voters acting through the exercise of their right to vote. President Clinton lied to the American people, and if they believed it appropriate, they were free to voice their disapproval by voting against his party in 1998 and remain free to do so in 2000, as occurred in 1974 when the Democrats secured major gains.”
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Thomas Sullivan, former U.S. attorney for Northern District of Illinois
“If the president were not involved, if an ordinary citizen were the subject of the inquiry … this case would simply not be given serious consideration for prosecution.”
“The evidence simply does not support the conclusion that the president knowingly committed perjury and the case is so doubtful and weak that a responsible prosecutor would not present it to the grand jury.”
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Edward Dennis Jr., deputy attorney general during the Bush administration
“I believe that a jury would be sympathetic to any person charged with perjury for dancing around questions put to them that demanded an admission of marital infidelity.”
“I think that it’s fairly clear, and that if a poll were taken of former U.S. attorneys from any administration, you would probably find the overwhelming number of them would agree with the assessment that this case is a loser and just would not be sustained in court.”
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William Weld, former governor of Massachussetts and head of the Justice Department criminal division during the Reagan administration
“I think the dignity of Congress and the dignity of the country demands something more than merely censure.”
“These are not offenses against the system of government. They don’t imperil the structure of our government. The remedy of impeachment is to remove the officeholder, get the worm out of the apple. It’s a prophylactic remedy. It is not punitive.”
“If any of you are thinking — we’ve got to vote yes on impeachment to tarnish the president, he’s already tarnished.”
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John Conyers, D-Mich.
“Our citizens either support doing nothing under the theory that the president has already been censured or they support an additional resolution of censure. But the important point is that for the vast majority of those who do not want an impeachment, a six-month Senate investigation with all of the attendant political and economic turmoil for all of those who want a proportional and sensible alternative shouldn’t be muzzled.”
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George Gekas, R-Pa.
“To me, bribery as in the Constitution is less destructive of the structure of government than is perjury committed by the president of the United States.”
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Charles Canady, R-Fla.
“I believe that we have an independent responsibility under the Constitution to make a judgment concerning the conduct of the president, and whether he should be impeached or not. And it would be in derogation of our constitutional responsibility to attempt to count noses in the Senate.”
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Bob Inglis, R-S.C.
“I’m keeping score, Mr. Chairman, as you know, so this makes panel four, Mr. Craig, the fourth panel, no facts. And Mr. Craig said yesterday to us, ‘In the course of our presentation today’ — that was yesterday — ‘and tomorrow’ — that’s today — ‘we will address the factual’ — underlined factual — ‘and evidentiary issues directly.’ The score now is zero to four. Zero panels, zero witnesses dealing with facts.”
The Clinton-Lewinsky scandal “will slowly dissipate over time under the weight of its own insubstantiality,” Hillary Rodham Clinton predicted two weeks ago. Fat chance. As can be seen by his recent rash of threats and subpoenas, Kenneth Starr is a fanatic, so fixed of purpose that if left to his own devices he will keep his investigation going until they pry his cold, dead hands from the file folder.
In all of American history, his closest counterpart is Anthony Comstock, the 19th century crusader against obscenity and contraception. Like the independent counsel, Comstock was granted a franchise — an 1873 congressional appointment as a special postal inspector — which seemed to leave him with unaccountable, extraconstitutional power.
Comstock, whose harsh tactics earned the sobriquet “comstockery,” would surely have approved of the wiring of Linda Tripp. Like Starr, who presented the country with the spectacle of a mother coerced into testifying about her adult daughter’s consensual sex life, Comstock was a master of high-pressure tactics, so effective that he drove more than one of his targets to suicide.
What finally ended Comstock’s crusade was his own moral certainty, which blinded him to public revulsion and to the deep corruption of his own operation. His “fervent piety … subordinates to its demands all the requirements of fair play, justice, equity and truth,” complained one critic. Rather more quickly than Comstock (who stayed in business for a quarter of a century before falling from power), Starr has set in place the mechanisms for his own downfall through the tactics he has chosen to employ.
Firstly, Starr is not quite as “unaccountable” as he — and his critics — believe. While he operates outside of the usual Justice Department bureaucracy, the Independent Counsel Law (as Rep. John Conyers, D-Mich., pointed out in a little-noticed Feb. 6 letter to Attorney General Janet Reno) explicitly states that special prosecutors may be “independent” day to day, but they remain an “inferior officer” of the Justice Department, subject to its rules, standards and jurisdiction.
The attorney general, wrote the Supreme Court, “retains ample authority to assure that the counsel is competently performing,” and holds “several means of supervising or controlling prosecutorial powers” of an independent counsel.
Exactly how that might play out has yet to be tested. Reno has not, as Conyers requested, officially initiated her own investigation of wrongdoing by Starr and his staff. But as the Lewinsky investigation has unfolded in increasingly odd directions, Starr has provided his critics with distinct avenues of inquiry, and Justice Department officials are said to be monitoring the situation closely.
Formal inquiries could proceed in the following directions:
Leaks
Illegal leaking of grand jury testimony by Starr’s staff has appalled career prosecutors and been made much of by the White House. Politically, this line of attack has already worked: While presidential secretary Betty Currie’s testimony fell into the hands of reporters within hours of her appearance, last week’s grand jury statements by Lewinsky’s mother, Marcia Lewis, have remained mercifully under wraps. But it’s a legal problem, too: Rule 6(e) of Federal Criminal Procedure explicitly prohibits any disclosure of grand jury matters; this rule covers not only witnesses’ testimony but legal arguments, future witnesses or any strategic information that has found its way almost daily from the Starr chamber into the press. Starr himself has, rather defensively, promised to investigate his own leaks. But that’s unlikely to satisfy the president’s allies, who sense the counsel’s legal vulnerability on this question.
The Paula Jones connection
Critics, including the president’s attorney, Robert Bennett, believe the independent counsel’s office has been illegally passing information to lawyers representing Paula Jones in her civil suit against President Clinton. One investigation is already under way — an internal inquiry by Starr’s own law firm, Kirkland & Ellis, where an associate attorney secretly worked on a Supreme Court brief on behalf of Jones. Perhaps as worrisome to Starr’s office is a paragraph buried in the Feb. 10 Wall Street Journal, reporting that Linda Tripp consistently passed information from Starr’s investigation to the Jones operation. If attorneys or investigators in the indpendent counsel’s office are found to be part of this back channel, Starr could find himself in very hot water indeed.
Witness intimidation and coercion
While heavy-handedness is often part and parcel of criminal investigations, the Justice Department does have certain standards — and Starr appears to have violated them. For example, University of Arkansas professor Steven Smith told the Washington Post that Starr’s Whitewater investigators “told me to sign a document they had written that simply was not true. They even said they were going to subpoena my mother.” Such stories have appeared frequently throughout Starr’s Whitewater tenure. If true, they constitute an abuse of authority, punishable by law.
But who would investigate the investigator? One possibility is Janet Reno herself — though that would be politically unwise, given her place in the president’s cabinet. More likely: the Justice Department’s Office of Professional Responsibility, which under department policies “oversees investigation of allegations of misconduct by Department employees.” Still another possibility — perhaps the most credible — is the Justice Department’s own in-house stable-cleaner, the Office of Inspector General.
Starr’s critics shouldn’t get too excited, though. A formal investigation, if it were to occur, would be weeks, or even months, down the road. But as public criticism of Starr grows, so, it seems, does his own defiance of common-sense ethical standards.
Clinton, meanwhile, has performed an astonishing feat of political aikido, turning a sex scandal into the highest poll numbers ever enjoyed by a sitting president. Now it’s time for the tables to turn legally, and for Judge Starr — like his ancestor Comstock — to be hoist by his own obsessive investigative petard.
