White House Reacts Angrily to Starr Plan

WASHINGTON —  The White House reacted angrily Saturday night to a report that independent counsel Kenneth W. Starr is considering whether to indict President Clinton before the president leaves office, charging that Starr, in disclosing his plans, is interfering with the ongoing Senate impeachment trial.

“Besides reinforcing his own stereotype, Kenneth Starr is tampering with the Senate trial,” said Jim Kennedy, a spokesman for the White House counsel’s office.

He was responding to a report, appearing in today’s New York Times, that Starr has concluded he has the constitutional authority to seek a grand jury indictment of Clinton for perjury and obstruction of justice in the Monica S. Lewinsky scandal--if not a trial--before the president leaves office.

“Somebody ought to tell [Starr] he’s not the 101st senator,” Kennedy said.

Charles G. Bakaly III, Starr’s spokesman, did not return repeated phone calls from the Los Angeles Times. He told the New York Times that “we will not discuss the plans of this office or the plans of the grand jury in any way, shape or form.”

The timing of the Times report--attributed to “several associates of Starr” and coming just as the Senate appears to be on course to end Clinton’s trial without a conviction--suggests the independent counsel might be warning senators not to duck the tough choices the case poses.

“His timing is extraordinary,” said one White House official, speaking on the condition of anonymity. But, he added, “maybe not from his interests.”

Whether a president can be indicted while he is in office has been a subject of intense debate among constitutional scholars because the Constitution appears to provide impeachment as the sanctioned course for dealing with misdeeds by incumbents.

On the other hand, there is some thought that while the Constitution provides for impeachment for “high crimes and misdemeanors,” more conventional remedies, such as indictment by a grand jury, are available for offenses for which removal from office would be considered an overly extreme course. An often-cited, if unrealistic, example is that of a first conviction for drunken driving.

Ronald D. Rotunda, a professor of constitutional law at the University of Illinois who has served as a consultant to Starr, has written that indictment is indeed an option.

He wrote in Legal Times that the Supreme Court tipped its hand in 1997, when it dismissed Clinton’s attempt to postpone until he is out of office the sexual harassment lawsuit filed against him by Paula Corbin Jones. He also wrote that the ruling also raises the question of punishment.

“While Clinton vs. Jones thus establishes that a sitting president may be indicted and tried, the court’s decision leaves the next, obvious question unanswered: Can a sitting president be imprisoned upon conviction for a criminal offense?”

Still, the question of indicting a president is one that has rarely arisen. Indeed, it would not have, given the political control of federal prosecutors, before independent counsels were established in 1978, raising the prospect of prosecuting a president.

“Most people say the president can’t be indicted,” said Mark V. Tushnet, a constitutional law expert and associate dean of the Georgetown University Law Center. “My view is, probably, yes, it is permissible.

“Everybody agrees there are some criminal acts that don’t constitute impeachable offenses. It would be peculiar to have a system in which someone who can’t be removed from office could still delay the legal process” until an elected term has been completed.

Rep. James E. Rogan (R-Glendale) said the House managers were not told of Starr’s research on this matter and were unsure themselves whether indicting a president while in office was constitutional.

“It’s never been tested,” he said. “The Constitution is vague on this point. Nobody will really know for sure whether it’s possible until the Supreme Court rules on it.”

As for Starr’s reported conclusion that he could, under the Constitution, seek to prosecute the president in a court proceeding outside of the impeachment course spelled out by the Founding Fathers, Tushnet said: “It’s been clear from the outset that if he is not satisfied with the impeachment process, he would indict the president.”

Indeed, there has been speculation that the independent counsel already has obtained an indictment, kept sealed by a federal court, and that if the Senate fails to convict the president, Starr will reveal the indictment and proceed to prosecute Clinton.

If the news of Starr’s plans influences the Senate trial, it will not be the first time action by Starr or his associates has played a role. The independent counsel went to court to require Lewinsky to come to Washington last weekend to meet with House managers so they could assess her helpfulness as a witness and assure the Senate that her testimony was essential. The move angered some Democrats in the Senate, who complained that the House managers were interfering with Senate procedure.

But several Democrats, including Sen. Dianne Feinstein of California, declined comment Saturday night on the report that Starr may seek to indict Clinton before the president’s term expires.

The White House itself has raised the specter of a Clinton indictment after the president’s term expires. David E. Kendall, one of the president’s personal lawyers, used the prospect of such an indictment in arguing to the senators that they should not remove the president from office because his actions, while not rising to the impeachment level of “high crimes and misdemeanors,” leave him vulnerable to criminal charges.

Sen. Arlen Specter (R-Pa.) has been the leading proponent of dropping the impeachment case in favor of letting the president face criminal charges as a private citizen. He has said Clinton could face jail time if convicted of perjury and obstruction of justice.

The New York Times did not call the White House for reaction in advance of posting its story on the Internet. Aides said the White House first learned of the report from Matt Drudge, who writes an Internet column.

Times staff writer Marc Lacey contributed to this story.