Dateline

Power behind closed doors

Andrew Phillips March 2 1998
Dateline

Power behind closed doors

Andrew Phillips March 2 1998

Power behind closed doors

Andrew Phillips

Dateline

It meets in a windowless room on the third floor of an imposing stone building. Its proceedings are shrouded in secrecy. Those summoned to appear before it, on pain of severe punishment, must go alone, without lawyers or advisers. They can be quizzed for hours by tag teams of prosecutors who are allowed to ask about unsubstantiated rumors and other details that would not be permitted in a regular courtroom. Not surprisingly, the ordeal is often unnerving. Those who have been through it use words like “intimidating” and “Big Brother at its worst.”

There are many things that nonAmericans find puzzling about the sex-and-lies scandal swirling around President Bill Clinton. How Americans can simultaneously tell pollsters that they believe he is being decidedly economical with the truth in describing his relationship with onetime White House intern Monica Lewinsky—and give him approval ratings that are the envy of politicians everywhere. How Americans can revere the presidency—and spend so much time tearing down everyone who holds the office. And why a country with such a fierce dedication to individual rights and more lawyers per capita than any other on Earth relies so heavily on legal tools like the one meeting on the third floor of the federal courthouse in Washington. Appearing before the grand jury convened by independent counsel Kenneth Starr to look into the Clinton-Lewinsky claims has been an unsettling experience for many. Lewinsky’s mother, Marcia Lewis, found it so hard to take that she emerged ashen faced—“emotionally overwhelmed and distraught,” in the words of her lawyer.

WASHINGTON

No wonder. Even aside from the stress of being forced to testify against her own daughter, Lewis faced something that has no equivalent in other countries with a similar legal tradition, such as Canada and Britain. In Canada, the closest parallel is a preliminary hearing, where a judge reviews the evidence that Crown prosecutors have against a person and decides whether the case should go to trial. Lawyers for both sides are present, the judge runs the show, and the rules are close to that of a trial. Not so with an American grand jury, which typically has 23 members. The prosecutor is in charge, and almost anything goes. “You can bring in anything you pick up—rumor, hearsay, the works,” says John Barrett, assistant professor of law at St. John’s University in New York City and a special prosecutor during Iran-contra, the armsfor-hostages scandal of the 1980s. Witness-

es, including those who may face charges as a result of the proceedings, cannot bring in lawyers. “The idea is to get the unmediated testimony of a witness,” says Barrett. “Lawyers, frankly, get in the way.”

True—but they also have a tendency to protect their clients’ rights. The irony is that grand juries originated in medieval England as a shield against arbitrary power; authorities had to convince a panel of local people that they really had evidence of a crime and weren’t just trumping up a charge. And during the fight for American independence, grand juries were celebrated for providing popular resistance against British rule. But the modern American grand jury is the opposite: it is the most powerful sword in a prosecutor’s legal arsenal. It can not only bring charges against a suspect, but often digs up much of the evidence against him (a job for the police in Canada). “The common wisdom in the States,” notes Kent Roach of the University of Toronto’s law school, “is that a grand jury will indict a ham sandwich if the prosecutor tells it to.” It is also, says Roach, part of a great American tradition— the prosecutor as crusading crime fighter, with one eye on his political future. Nothing could be further from the practice in Canada, where Crown prosecutors almost always remain anonymous civil servants. Americans, adds Roach, “are in some ways more robust crime fighters than we are.”

The legal power brought to bear by Starr is further increased by another controversial law—the 20year-old statute that established the position of independent counsel. It is part of the Ethics in Government Act, passed in the wake of the Watergate scandal when embattled president Richard Nixon fired Archibald Cox, the special prosecutor who was looking into the matter. The idea was to make sure that future investigations of executive wrongdoing would be free of political interference. Since then, independent counsels have conducted 18 inquiries. When ReI publican presidents were in the White House, their party railed against the independent counsel law. It gives special prosecutors virtually unlimited time and money, they complained, to pursue what amounts to an ongoing inquisition against the president and his staff. Yale University law professor Akhil Amar calls it “pin the crime on the donkey—first you pick the person, then you find a crime to stick him with.”

Now, it is Democrats who are the targets—and they do not like it any better. Starr, they say, is a die-hard Republican conducting a political witch-hunt against Clinton in the guise of a legal inquiry. His tactics, they add, are those of a bully: he intimidates witnesses; forces parents to testify against their children; leaks confidential testimony to the media; and sneakily wires friendly witnesses to gather evidence (as Lewinsky’s onetime friend, Linda Tripp, did to record her graphic tale of an alleged affair with Clinton). The truth may be less dramatic. Starr may just be making best use of the laws that give American prosecutors such extraordinary power.