"Nothing has changed"

Reactions to Starr's day in court

By Fiona Morgan - Daryl Lindsey - Compiled by Lori Leibovich
Published November 20, 1998 12:46PM (EST)

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Nelson Polsby, congressional expert and professor of political science at UC-Berkeley

The whole thing is doomed, the project of impeaching the president is doomed. If anybody is serious about impeachment, it seems to me elementary that it has to be bipartisan. And if this is the best case Starr can make I certainly don't blame the American people for turning it off. I don't think the merits are very interesting anymore. What's interesting is whether [Starr's testimony] in effect fortifies or undermines the case for impeachment, and it seems to me mostly, because of the Republican inability to attract any Democratic sympathy -- which was emphatically not the case in 1974 -- it means it's a big waste of time.

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Peter Wallison, partner at the Gibson, Dunn & Crutcher law firm and a former White House counsel to President Reagan

I thought Starr did very well today. But in order to determine whether his case was bolstered or weakened you'd have to know what people expected. He has been the subject of attacks -- on the nature of his investigation, on his personality, on his alleged partisanship -- and the person who appeared on television today would not have validated those impressions. He seemed to be a reasonable person -- not the demon or the partisan that a person like James Carville, for example, has portrayed him. In that sense, Ken Starr helped himself today.

There was probably no way that he was going to increase the impact of the referral he had already made. Basically, what we saw was an effort on the part of the Democrats to change the subject, to make Starr the issue. I don' think that was successful. I didn't get to see all of [Abbe] Lowell's questioning today, but again, everything that the Democrats said today was irrelevant to the entire impeachment inquiry.

What this has been since the beginning has been an effort to focus on the prosecutor -- to make him the issue, to make his process the issue, to make the committee's process the issue and to avoid like the plague addressing any of the charges of substance against the president. If this had truly been a high-level kind of inquiry and not simply the low-level attack on Starr it turned out to be, there would have been much more questioning of Starr about the whole question of whether what the president did was impeachable and why Starr thought it may be an impeachable offense. Ken Starr is a recognized constitutional expert, and if any of the Democrats had been serious about this issue they would have engaged in a colloquy or a debate with him over whether this was an impeachable offense.

I certainly think that [Starr's claim that Clinton was
obstructing justice by litigating his privilege claims in court] is a justifiable position. As Starr said, and what I think is clear, is that the president used the privilege to protect himself -- to the extent he could until he lost in court -- against charges that arose out of his personal conduct.

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Jack Rakove, professor of history at Stanford University and Pulitzer Prize-winning author of "Original Meanings: Politics and Ideas in the Making of the Constitution"

Starr certainly seems to have held his own, as one would expect him to do. He is, after all, a former solicitor general, a former judge and very genial in person; and as press reports suggest, he was well-prepared. Whether anything changed in the underlying politics of the case is another question entirely, because the basic positions are well established. The fact that he seems to indicate that there is nothing to Travelgate, Filegate or Whitewater will make it more difficult for the House to approve whatever impeachment recommendation the Judiciary Committee may forward. It's not likely that the assertion of executive privilege, whether justified or excessive, would provide a basis for further action on impeachment.

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Stephen Saltzburg, law professor at George Washington University and a top Justice Department official in the Reagan and Bush administrations

The Democrats had an opportunity today to emphasize all of what they regard as the unfair aspects of the investigation. The Republicans had a chance to emphasize the potentially impeachable acts. It's as though you had two different hearings going on simultaneously. At the end of the day, the Republicans will say there are serious allegations here and the Democrats will say the independent counsel overreached and there are serious questions about fairness. I doubt that anyone's mind on this committee is going to be changed by anything that was said today.

This morning Starr tried to characterize the president as misusing his office and the people around him, and that was not nearly as emphasized in the report. This testimony this morning and his written statement chose to make the case that he misused his secretary, his government lawyers, misused his claims of privilege and misused his staff by lying to them. All of that is an effort to make the case that this is abuse of office. Was I convinced? No. But I do think this was much more effective than the report. What it demonstrated was that it wasn't necessary -- despite all the claims that were made to the contrary -- it wasn't necessary to have all those lurid details in the report.

My conception of the independent counsel is that it is his job to investigate, bring cases and if possible inform Congress of possible impeachable offenses. If Congress then wants to call him as a witness to ask him questions, to clarify anything that he's submitted, he ought to do that. But in my opinion it is inappropriate for the independent counsel to be the one to marshal the evidence. That was David Shippers' job, not Starr's. To put together quotations from other members of Congress and work them into his presentation took on an air of someone who was not independent, who was not doing what the statute asked him to do. Even though he said he wasn't trying to make the case for impeachment, it was hard to imagine what he was doing if he wasn't doing that.

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Erwin Chemerinsky, constitutional expert and professor of law at the University of Southern California

I think Starr fared extremely well. He kept his composure in the face of difficult questioning. On the other hand, I don't think anybody's mind was changed today. Everybody who thought there were impeachable offenses before today still thinks that, and everybody who thinks there is nothing impeachable still thinks that. There's no way to separate the legal from the political here. His arguments had both legal and political dimensions. He admitted that Clinton has done nothing impeachable in Travelgate and Filegate. I think that's significant. But he was ambiguous about Whitewater. At one point he said he was going to pursue it and then at another point he said he was not. So [the role of Whitewater is] not clear.

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Joseph J. Ellis, Constitutional expert, professor of history at Mount
Holyoke College and signatory in a letter by prominent historians blasting the impeachment proceedings. He is also the author of
Sphinx: The Character of Thomas Jefferson."

Mr. Starr is an intelligent, well-trained
lawyer who, to a lawyer watching, did very well. But I think Starr's own
personality does not come across well to a popular audience. And Starr's
testimony was kind of a wash -- most feelings of people going in with
pro-Starr and anti-Clinton opinions were underlined, and those people
who came in on the other side found Starr's testimony less persuasive
than criticisms of his demeanor (leaks to the press and the treatment of
Monica Lewinsky). I don't think it's going to make any practical
difference. It's a foregone conclusion that the committee will vote
impeachment because of the Republican majority and that the House will
not then support that. The tea leaves were there to be read in the
public approval ratings of Clinton beyond the Beltway and in the overall
health of the economy.

The special prosecutor was supposed to present
evidence without all the tilting he did towards a verdict. His behavior
throughout this entire inquiry suggests that he has been out to get
Clinton. But the truth is that, while the original offense was itself a
personal indiscretion of a major sort, Clinton's perjury before the
grand jury and his failure to cooperate do constitute legal violations.
The core problem is that the original offense was a personal matter.
Once past that, Starr has very strong legal grounds on which to base his
grievances and charges.

The important institutional issue that now
lingers is: To what extent does Starr's behavior as special prosecutor
cause us to think that we want to modify the legislation governing the
special prosecutor or do away with the office altogether? I would prefer
to see legislation that reduces or limits the mandate to offenses that
are direct violations of a president's public responsibility while the
person is in office.

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Rory Little, professor of law at Hastings College of the Law and
former associate deputy attorney general under Janet Reno

that Ken Starr did, or can do, can change the minds of virtually anyone
involved in this process, or observing it. He presented his case
solidly, and his normal calm demeanor probably won him a few points with
a few people. But his "case" -- and it's not a case, but rather a
presentation in a completely political arena -- stands or falls on its
merits, not on his presentation.

No one is being impeached yet. I
think it oversimplifies to say that Starr's claim is that the simple
litigation of privilege is the obstruction. Rather, Starr would argue that a repeated pattern of Clinton lying to his attorneys and advisors,
and then they in turn transmitting (unknowingly) those lies in court or
in other arenas, adds up to "obstruction of justice." There is case
precedent for the idea that the obstruction of justice statute's final
clause -- the vague "omnibus" clause -- is designed to make anything
count as "obstruction" if done with corrupt intent and an actual effect
of obstruction.

We live in a very different culture than even 25
years ago. Today, being over-technical and using every legal advantage
is often seen as a virtue, not a fault. I doubt anyone will charge Bill
Gates with obstruction of justice, even though a fair amount of his
current litigation conduct looks very obstructionist.

What [Starr's
Whitewater testimony] did was confirm that there really isn't anything
else there. The most powerful rhetorical point of the entire proceeding
was when Barney Frank said, "Why did you withhold that before the
election when you were sending us a referral with a lot of negative
stuff about the president, and only now ... you give us this exoneration
of the president?" It makes Starr look completely partisan, whether
he is or not. (In Starr's defense, it is, to be honest, unusual for a
prosecutor to announce that, while he has filed certain charges, other
investigative leads didn't pan out.)

Fiona Morgan

Fiona Morgan is an associate editor for Salon News.

MORE FROM Fiona Morgan

Daryl Lindsey

Daryl Lindsey is associate editor of Salon News and an Arthur Burns fellow. He currently lives in Berlin and writes for Salon and Die Welt.

MORE FROM Daryl Lindsey

Compiled by Lori Leibovich

MORE FROM Compiled by Lori Leibovich

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