As the impeachment trial was slouching toward completion, another issue began rising in prominence: Can Bill Clinton be indicted while he’s President? The day before the Senate held its no-sex-please deposition with Monica Lewinsky, the New York Times reported that independent counsel Kenneth Starr had concluded he can charge Clinton before he departs the White House. Starr, the paper said, was undecided as to whether to take such a bold step. The account noted that Starr’s brain trust on this tricky point comprised two paid consultants, Ronald Rotunda of the University of Illinois Law School and William Kelley of Notre Dame Law School. They were identified as constitutional law experts. Both are more. Kelley is a longtime Starr-man: He clerked for Starr when he was a federal judge–and for Supreme Court Justice Antonin Scalia–and worked for Starr when he was Solicitor General. Rotunda, the more notable of the two, was assistant majority counsel for the Senate Watergate committee and wrote a definitive text on constitutional law. He is also a conservative legal activist affiliated with major players of the right.
Rotunda was hired by Starr’s office in August 1997. When the appointment became public the following February, a reporter asked him about his politics. The man advising Starr on the crucial matter of presidential indictment came across as a moderate Republican: “I vote a split ticket generally, but I’m not ashamed to say that I’m generally a Republican.” That was not the full truth. Rotunda boasts close connections to conservative outfits and hobnobs with Clinton antagonists.
Rotunda serves on boards for the Federalist Society, the Ethics and Public Policy Center and the Heartland Institute; he has also worked with the Heritage Foundation. At the Federalist Society–the leading right-wing legal organization–Rotunda is a vice chairman of the Professional Responsibility Practice Group. (The society’s trustees include Robert Bork, Orrin Hatch, Edwin Meese and Christian Coalition president Donald Hodel.) At the Ethics and Public Policy Center–a group headed by Elliott Abrams, a former Reagan official who pleaded guilty to withholding information from Congress in the Iran/contra scandal–Rotunda is part of the advisory council for a project that crusades against so-called judicial activism. His comrades in this endeavor include William Bennett, C. Boyden Gray and William Kristol. Rotunda is also on the board of policy advisers for the Heartland Institute, which promotes the work of right-wing policy shops like the Heritage Foundation, the Cato Institute and the Institute for Justice. One of its specialties is claiming that global warming isn’t happening. As a Heartland expert, he produced a paper defending the constitutionality of term limits. For the Heritage Foundation, Rotunda wrote a study on the War Powers Act and contributed to a 1998 memorandum attacking the Antiballistic Missile Treaty. (He also provided a constitutional analysis to Jesse Helms in 1997 criticizing the chemical weapons treaty.) When a college newspaper reporter interviewed him last spring on Roe v. Wade, Rotunda maintained that some abortion rights supporters originally had ulterior motives: “They thought that poor people bred too rapidly.”
Before Rotunda joined Starr’s payroll–he pocketed $97,000 for his first year of consulting–he was lead counsel on an amicus brief backing Paula Jones’s argument that a sitting President can be sued. His involvement in that case, Rotunda says, came after he was contacted by Jerome Marcus, who has been cited in news stories as the kingpin of a small claque of thirtysomething, Clinton-hating, conservative lawyers who, behind the scenes, helped propel the Jones case. As head of this shadow legal team, Marcus provided the first tip-off to Starr’s office about Monica Lewinsky.
Rotunda certainly is a legal scholar of high accomplishment, but he’s neck-deep in conservative politics. By relying on him, Starr has yet again provided the Clintonistas with evidence that the prevaricator in chief is being targeted by a small, incestuous coterie of right-wingers. In November at a Federalist Society conference at Washington’s Mayflower Hotel, Ted Olson, a prominent conservative attorney (who sits with Rotunda on the board for the judicial activism project) and a friend of Starr, welcomed his audience to “the vast right-wing conspiracy. In fact, you’re at the heart of it.” Olson thought he was kidding. But given that Rotunda, a society officer who was scheduled to speak later, had been hard at work proving that Starr (another society member) could indict Clinton, Olson’s joke had a serious edge to it. Shouldn’t the scholar advising Starr on this contentious topic be a step or two removed from the ideological lawyer-warriors of the right? Obviously Starr doesn’t think so–further proof his political and legal judgments deserve little confidence.