July 14, 2000
Wall Street Journal
A Prosecution Too Far, Again
By Julian Epstein
Chief Democratic Counsel to the House Judiciary Committee
Charles Bakaly, a former spokesman for independent counsel
Kenneth Starr, went on trial yesterday for allegedly lying about
grand jury leaks. Many might have expected those of us who had in
the past accused the Starr operation of such leaks would feel
vindicated. Is this not poetic justice for Mr. Starr's
acolytes, who sought to criminalize President Clinton's semantic
parsing?
No, the prosecution of Mr. Bakaly is wrong and should not occur.
Does this mean that I've softened my critical view of the Starr
operation, or that I now believe that we should simply let
bygones be bygones? To the contrary. I still believe the Starr
enterprise violated the rules by leaking damaging grand jury
information about the president in order to influence the
political process. No one else possessed both access to
information as well as an incentive to leak it. Under the
independent counsel's rules, the ubiquitous "law enforcement
sources" quoted in news accounts could only have been Mr.
Starr's investigators and attorneys.
The leaks may have been politically inept -- after all, to the
public, they made Mr. Starr look overtly partisan and obsessed
with sex. But violations of grand jury secrecy rules are still
grave prosecutorial sins against due process (subjects have
virtually no ability to respond to these leaks) and
professionalism (prosecutors should be concerned with justice,
not with influencing the political process). These violations
should be punished accordingly. Are these, then, crocodile tears
that I shed for Mr. Bakaly? Hardly. I believe that his
prosecution, too, is emblematic of prosecutorial excess in an
area that can only be described as legally trivial.
There is no real underlying crime with which Mr. Bakaly is
charged. His discussions with the New York Times in January
1999, regarding Starr advisers' theoretical views on prosecuting
sitting presidents, may have shown poor taste and poorer
judgement. But they were not illegal under the grand jury rules,
as later determined by the relevant circuit court. Even before
that ruling, the subject matter, at worst, resided in a gray area
of permissibility.
What we are left with is Mr. Bakaly's apparent semantic parsing
when questioned in a subsequent investigation ordered by Judge
Norma Holloway Johnson. It seems that Mr. Bakaly denied being
the "source" of the article and denied speculating about Mr.
Starr's prosecutorial plans. Subsequent investigation showed
that he did, in fact, have conversations with the reporter, and
provide material to him.
Could a prosecutor make the argument that Mr. Bakaly misled
investigators by failing to clarify his precise role, thereby
committing a crime? Yes, a prosecutor could make that argument.
But should a prosecutor make such an argument? No, because in
the larger context, it is simply not significant enough,
particularly when it involves semantical ambiguities with no
underlying criminal conduct.
Prosecutorial decisions to invoke the full weight of the criminal
justice system, along with its most onerous penalties, are
contextual, not abstract. They should take account of the
government's interest, as well as all underlying circumstances,
bearing in mind that more proportionate sanctions are often
available.
Since Watergate, the investigative apparatus has grown too
unaccountable to the norms of prosecutorial judgment. Too often,
prosecutors have been unleashed in pursuit of trivial, legally
scant matters, and then seek to build a case on a single
discrepancy in the hundreds of questions asked in the course of
the investigation. None of the investigations involving the vice
president or the first lady, for instance, concerned any
underlying allegation that would be taken seriously by a court.
They were, instead, largely interminable investigations into
semantic trivialities that emerged from dead-end probes.
It is high time that we -- Republicans and Democrats -- called a
prosecutorial duck a duck. We should do so when a prosecution
targets a political nemesis (as Mr. Bakaly was mine), and not
just when it targets a political friend.
That's not only an imperative of basic fairness, it is also
necessary to preserve the checks against corruption. When these
public probes careen into the petty and picayune, when they
appear to be investigations in search of a crime, public
sensibility deadens. Thus an ever-increasing number of Americans
develop Pavlovian "off-switches" which may stay off when real
venality develops.
=================================================================
Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF: <[EMAIL PROTECTED]>
*Mike Spitzer* <[EMAIL PROTECTED]>
~~~~~~~~ <[EMAIL PROTECTED]>
The Best Way To Destroy Enemies Is To Change Them To Friends
Shalom, A Salaam Aleikum, and to all, A Good Day.
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