Death of American Virtue - Ken Gormley [430]
The White House was hurled into a new state of panic. As one adviser close to the president recalled, “I thought it was a signal that they might actually indict him. All of a sudden, there was another threat.” The proposition that the president could be criminally indicted while in office was not, by any means, a settled matter. Conservative icon Robert Bork, while solicitor general to President Nixon during the Watergate showdown, had issued a categorical opinion that such a course was impermissible. The only recourse for criminal conduct by a sitting president, Bork had opined in 1973, was impeachment. Only after being removed from office could criminal proceedings go forward. As one Republican federal judge had warned during Watergate, allowing the government to indict, prosecute, or arrest a sitting president prior to impeachment could effectively grind the executive branch to a halt.
Yet Starr had found allies with impressive credentials and who were prepared to reach the opposite conclusion. Professor Rotunda was a leading constitutional law scholar who had been aligned with Starr’s team from the start; he was highly regarded among Supreme Court justices and would get their attention. Professor Kelley, a former clerk to Judge Starr, was known for his bold conservative stripes; his endorsement added to OIC’s firepower. These signals of a potential sneak attack, by which Starr might indict the president in the middle of the impeachment trial, were deeply troublesome for the White House lawyers. David Kendall later noted, “It was just a flagrantly illegal leak. It was, in my view, designed to influence the proceedings.”
The Starr team members didn’t know it, but they were in a race against the clock. One of the judges on the special three-judge court that oversaw the in dependent counsel operations—Senior Judge John D. Butzner, Jr., of Virginia—was privately mulling over whether to pull the plug on Ken Starr’s operation. Seated in a wheelchair in his assisted-living home in Richmond, Judge Butzner would later answer a firm “yes” to the question whether he favored removing Starr at this juncture. Tucked away in Butzner’s files was a newspaper clipping that explained that a little-known provision in the independent counsel law permitted the three-judge panel to terminate an investigation if it was “substantially completed.” Each year, on the anniversary of an independent counsel’s appointment (in Starr’s case on August 5), the court had authority “on its own motion” to terminate an investigation. Judge Butzner, who had opposed Starr’s appointment from the get-go, was watching the calendar carefully. He was prepared to cut off the lifeline to this particular investigation—if he could find a second vote.
IF history were to identify a watershed moment in the impeachment trial of President William Jefferson Clinton, a point when the momentum shifted dramatically in favor of the president, it would have to be the remarkable twenty-four-hour period that began when former Senator Dale Bumpers of Arkansas gave an impassioned speech in the Senate. The president’s lawyer David Kendall later confirmed: “That’s when I thought we were okay.”
Dale Bumpers had retired the previous month after twenty-four years in the Senate. He had known Bill Clinton since the early 1970s, when he was governor of Arkansas and Bill Clinton was a young law professor itching to win a seat in Congress. A quarter century later, Bumpers lamented that the whole Whitewater scandal “stunk to high heaven [from] the very beginning,” and that the Lewinsky charges were being used by Clinton’s enemies to pile it on. Bumpers was unabashedly pro-Clinton. Still, he was surprised when Senator Tom Harkin of Iowa called him the Sunday before Martin Luther King Jr. Day, proposing that he deliver a “closing argument” in Clinton’s impeachment trial.
The White House had learned from poring over old Congressional Globe volumes that a number of former attorneys general and other