Sunday, June 14, 1998

Quick report could ruin Starr's case

By Morton Kondracke

Independent counsel Kenneth Starr may be about to make a fatal mistake in his pursuit of President Clinton by sending Congress an incomplete "interim" report on his investigation.

Almost certainly, Democrats would cite the report as proof positive that Starr is a partisan Republican not only out to destroy Clinton but also determined to affect the outcome of the November elections.

The report, especially if it makes a weak case that Clinton has committed impeachable offenses, could ruin Starr's already shaky credibility with the public and destroy his ability to get a hearing if he later develops stronger evidence against Clinton.

So unless Starr already has a rock-solid case against Clinton on some completed phase of his investigation, he ought to wait until after the election before delivering a report to Congress.

This logic is gaining increasing currency among both Republicans and legal scholars, but Starr's spokesman, Charles Bakaly, told me, "We are moving as fast as we can" toward submitting a "semi-final" report.

Starr and Bakaly have strongly implied that Starr believes he already has "credible and substantial information" indicating Clinton committed perjury and/or obstruction of justice in the Monica Lewinsky case.

The statute governing Starr's work requires an independent counsel "advise the House of Representatives of any credible and substantial information that may constitute grounds for an impeachment," but it doesn't stipulate when or how.

For months, House GOP leaders have been expecting a report from Starr sometime in June or July, and many of them -- apparently including House Speaker Newt Gingrich, R-Ga., -- had been hoping to begin an impeachment inquiry that could help the GOP in November.

But White House assertions of executive privilege, lawyer-client privilege and Secret Service "protective privilege" have slowed down Starr's investigation -- which probably was the main objective.

Almost certainly, the Supreme Court's rejection of Starr's motion for expedited decisions on the Secret Service issue and on Clinton's assertion that lawyer-client protection covers his White House consiglieri, Bruce Lindsay, will make it impossible for Starr to develop a complete case against Clinton by November.

The Court of Appeals for D.C. will hear the cases late this month, but the Supreme Court won't be back in regular session to hear an appeal until October, meaning if Starr wins, he won't be able to quiz Lindsay and Secret Service agents much before November.

It's likely Starr could complete another phase of his probe -- getting testimony from Lewinsky -- in the next few weeks, but even if she implicated Clinton in perjury or obstruction, Starr's probe would be incomplete.

Asked about the merits of Starr's reporting early, National Republican Congressional Committee Chairman John Linder (Ga.) said, "I can't imagine what he'd gain by filing a report that has holes in it." Starr "surely" would be attacked by Democrats if he did, he said.

Linder added that "most of us" House Republicans "think we are not going to get anything immediately" from Starr.

House Judiciary Chairman Henry Hyde, R-Ill., told Roll Call he hopes Starr doesn't send up an "incomplete" interim report, and there are indications Gingrich has come around to this view. Similarly, House Appropriations Chairman Bob Livingston, R-La., said Starr "ought to wait until he has a complete package. He shouldn't send us anything that's half-baked, though if he feels he has to file something, he should file it."

On "Meet the Press" last Sunday, Senate Judiciary Chairman Orrin Hatch, R-Utah, said he "doubted seriously" Starr would send up an interim report, adding Congress needs "awfully strong facts in order for an impeachment trial to be justified."

Among legal scholars, George Washington University professor Steven Saltzburg, a former deputy independent counsel, said, "An interim report before the investigation is over would be viewed as political. Unless Starr thinks he's done with a phase of his investigation, he's not going to have all his evidence. It'd be a terrible mistake to report before he's done."

Jonathan Turley, another GWU law professor, added, "You get one bite at this apple. If you're going to make a case against the president of the United States, you'd better have all your evidence."

As a foretaste of what Starr could expect, former White House aide Lanny Davis said last week an interim Starr report would be "only a political document" designed to affect the election. On television last week, Rep. Henry Waxman, D-Calif., said Starr would be treating impeachment "frivolously" by reporting early.

The message to Starr is pretty clear: If you're going to shoot at the king, you'd better have the goods to kill him. Otherwise, you're finished.

Morton Kondracke is executive editor of Roll Call, the newspaper of Capitol Hill.

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