Abuse of Power: Gravest But Weakest Charge

Presidents of the United States have awesome powers. They can move armies across continents, direct the vast domestic machinery of government, command the attention of millions of citizens with almost every utterance.

Misuse of that unique executive authority would be a grave offense against the nation. And that is exactly what President Clinton has done, according to independent counsel Kenneth Starr.

The last charge Mr. Starr makes in his report to Congress is that the president has repeatedly abused his constitutional authority since allegations about his relationship with Monica Lewinsky became public knowledge in January.

In some ways, it is the most fateful of the charges the Starr report makes. That's because abuse of power is an impeachable act by almost anyone's standard.

But it may also be the weakest of Starr's grounds for possible removal of the president from office. The abuses alleged - lying and misuse of executive legal privilege - are much different in scope from the conspiracy of officials directed by Richard Nixon during Watergate.

"It is a novel allegation," says Michael Gerhardt, a specialist in the impeachment process at the College of William and Mary in Williamsburg, Va. "It doesn't really fit within the kinds of abuses of powers that we have recognized in the past."

This does not mean that abuse of constitutional authority is a well-plowed area of the law. No precise definition of such an act exists. Instead, say constitutional scholars, abuse of power is something akin to pornography - you can't define it, but you know it when you see it. It would have to be an act that damages the effectiveness of the office itself, something that would make it virtually impossible for the president in question to function in the job.

In a general sense, weighing such damage is the point of the impeachment process itself. Some legal experts thus feel that by charging abuse of power, on top of perjury and obstruction of justice, Starr is being redundant.

Starr is attempting to draw lawmakers' conclusions for them, say some of the president's defenders. "Starr's report is an advocacy document, and this is a good example of that," says a prominent Washington attorney who is advising House Democrats on the charges.

Specifically, count 11 of the Starr report says that Clinton abused his constitutional authority by:

* Lying to the public and Congress about his relationship with Ms. Lewinsky last January.

* Promising to cooperate fully with Starr's probe, and then stonewalling.

* Invoking executive privilege in an effort to tie up prosecutors.

* Refusing six invitations to testify to the grand jury.

* Lying when he finally did appear before the panel.

* Lying again in his televised statement to the nation in August.

Boiled down, the charges are this: He lied, and he put as many roadblocks as he could in Starr's way. All of this was "part of an effort to hinder, impede, and deflect possible inquiry by the Congress of the United States," says the Starr report.

But targets of an investigation are allowed to defend themselves. This point of law holds even if the target's office is an oval one, say scholars.

"Everyone is entitled to certain defenses, even if they're guilty," says Mr. Gerhardt of William and Mary.

Starr's prosecutors may well have been frustrated by Clinton's many assertions of executive privilege. The Starr report says that "the White House's approach to the constitutionally based principle of executive privilege most clearly exposed the non-cooperation" of the president.

These claims "were patently groundless," says the Starr report.

But that would be almost impossible to prove, say scholars, if for nothing else than that the grounds for when a chief executive can claim executive privilege remain fuzzy.

When drawing up this final charge, Starr's office probably had in mind the structure of the articles of impeachment against Mr. Nixon that were approved by the House Judiciary Committee 24 years ago, says John Barrett, a law professor at St. John's University School of Law. One of the articles focused on Nixon's misuse of government agencies and offices in an attempt to deflect the investigation into the Watergate break-in.

"It wasn't quite parallel to this, but it is somewhat analogous," says Mr. Barrett.

The articles were not a legalistic document meant for a court of law, but a broad indictment intended to show the nation the reasons for the highly political act of removing the president. The abuse of power charge against Clinton can most usefully be seen in that light, says Barrett. It is, in essence, part of a staff memorandum on impeachment, not a prosecutor's charging document aimed at a judge.

"It may be a different angle, but it's a useful angle for the House to consider," says Barrett.The comparison with the only president forced from office is not one that the president's lawyers accept easily. Their written response to the Starr report points out that the abuse of power charges against Nixon involved a conspiracy of senior staff perjury, payoffs to criminal defendants, and use of the CIA to thwart the FBI's probe into the president's actions.