- The Washington Times - Tuesday, December 28, 1999

It was like Elmer Gantry accosting the pope and confessing that while entitled to indulgences to truncate his purgatory he would desist from the request as a matter of magnanimity.

President William Jefferson Clinton, the exalted occupant of the White House, has declared to the American people his disinclination to seek reimbursement from taxpayer dollars of his gold-plated attorneys' fees incurred in the multifaceted invest- igation of criminal wrong- doing by independent counsel Kenneth Starr and his successor, Robert Ray. Mr. Clinton claims a clear legal right to the millions he expended in salvaging his presidency, but insinuates, like Jesus in Luke 23:34, that he is forgoing the riches because his adversaries did not know what they were doing. Mr. Clinton also insists that his impeachment ordeal was fathered by partisan extremists implacably bent on his personal destruction. According to his version of history, the idea is fanciful that lying under oath in court and grand jury proceedings and obstructing justice fueled his Senate impeachment trial.

Mr. Clinton is an honorable man, at least as honorable as Brutus and Cassius in Shakespeare's "Julius Caesar." To suggest that he might economize on the truth would smack of lese majesty, a desacralization of 1600 Pennsylvania Ave. But even the high and mighty occasionally stumble, so the question must be pursued.

The independent counsel law empowers a three-judge special division to award reasonable attorneys' fees to the target of an independent counsel investigation who both escapes indictment and would not have been investigated by the Department of Justice for the alleged wrongdoing. The awards are discretionary, not mandatory. They should respond to the decent sentiment that high-level officials should not be financially penalized by the necessity of defending against flimsy allegations lodged with an independent counsel that would not have awakened the slumber of the attorney general.

The prologue to the appointment of Mr. Starr as independent counsel militates against Mr. Clinton's gospel. He acceded to the presidency in 1993 when the independent counsel law had lapsed. Whitewater and companion cases were afoot. Mr. Clinton's Attorney General, Janet Reno, who boasts of ethical purity and spotless nonpartisanship, appointed Robert Fiske as the department's special prosecutor to investigate the president and others. The Fiske inquiry was superceded when Mr. Clinton and Miss Reno championed a revival of the independent counsel statute, which eventuated in the Starr appointment. But the initial inquiry by the department itself discredits the claim that Mr. Starr was out on a caper in his sequel investigation. Such proof is a necessary condition for an award of attorneys' fees to Mr. Clinton.

Mr. Fiske, however, was not investigating the Monica Lewinsky case, and Mr. Starr did with the approval of Miss Reno and the special division. How likely would have been a department investigation of the Lewinsky matter?

It occasioned two articles of impeachment against Mr. Clinton voted by a majority of the House of Representatives, only the second impeachment of a president in the history of the United States. On one article, half of the Senate voted to convict; moreover, several voted to acquit not because proof of criminality was wanting but because the proven wrongdoing did not establish an impeachable offense according to their individual constitutional interpretations.

Moreover, U.S. District Court Susan Webber Wright adjudicated Mr. Clinton in contempt of court for lying under oath to questions that she determined were reasonably related to the sexual harassment suit of Paula Jones. Miss Reno declined to seek removal of Mr. Starr for "good cause," a standard that would have been satisfied if the Lewinsky matter were an investigatory lark or the sinister machinations of a "right-wing conspiracy," in the words of first lady Hillary Rodham Clinton.

Finally, Mr. Starr probably resisted an indictment of the president because the constitutional question was cloudy and the politically charged nature of the investigation made resolution of the accusations best left with Congress, at least before Mr. Clinton's tenure expired.

It might be said, nonetheless, that Miss Reno would never have investigated the Lewinsky evidence of perjury and obstruction of justice. Her pliability was convincingly established by running roughshod over the advice of FBI Director Louis Freeh and her hand-picked career attorney Charles LaBella to thwart any investigation of alleged campaign finance irregularities of Mr. Clinton and Vice President Al Gore. Thus, Mr. Clinton might urge, Miss Reno would not have displayed the backbone needed to pursue the Lewinsky case.

That argument would betray the attorney general, but the president has proven himself above such character issues. He epitomizes loyalty at least as well as Alcibiades, Talleyrand and Iago. The special division, however, would probably be unmoved by an appeal for a discretionary award pivoting on the political submissiveness of the Department of Justice, like rewarding a parricide for his orphanage.

We should be thankful, nonetheless, for Mr. Clinton's financial sacrifice in foregoing a request for attorneys' fees he had no chance of receiving. Such unstained altruism is not often witnessed in the White House.


Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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