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Allan Favish is a Los Angeles-based attorney whose focus is on General Insurance Defense and Litigation Insurance Coverage/Reinsurance & Bad Faith Litigation.  A UCLA graduate, he received his J.D. at Hastings College of Law in 1981.

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Starr's November Surprise?

The speculation about whether independent counsel Kenneth Starr will have a grand jury indict First Lady Hillary Rodham Clinton and perhaps name President Bill Clinton as an unindicted co-conspirator often centers on whether such actions might occur before the Nov. 5th election.

There appears to be an underlying assumption that any grand jury action that would cause a vote denying the president a second term must occur before Nov. 5. However, those who make this assumption fail to take account of the electoral college.

Because of the electoral college it is possible for grand jury action against the president and first lady to occur after the November election and still cause a vote denying the president a second term. This is because the electors who vote in the electoral college will do so on Dec. 16. Their ballots will not be opened until January 6, 1997. Therefore, major grand jury action against the Clintons could follow the Nov. 5th election but occur prior to the real election by the electors on Dec. 16.

Under the Constitution, the electors are free to vote for whomever they wish on Dec. 16. Some states have laws imposing small fines on electors who fail to vote for the candidate who won the state, and those states may be able to impose that punishment, but no state can stop an elector who wishes to vote for somebody else.

Assuming a Clinton victory on Nov. 5 followed by grand jury action, there would be pressure on the Democratic party electors to vote on Dec. 16 for Al Gore (or somebody else) for president, rather than Clinton. This pressure would result from a desire to spare the Democratic party an impeachment fiasco and long-term political damage.

Of course, indictments and being named an unindicted coconspirator are not convictions. Naturally, if the grand jury's actions were short on specifics and easily rebutted by the first couple in a press conference then there would be little problem for the Democratic party and Starr would be rightly ridiculed by the press.

However, grand jury actions often contain detailed explanations of the charges and set forth some of the evidence. Since it would be unlikely for Starr to initiate such grand jury action against either of the Clintons without very specific and powerfully documented charges, it's likely that any such action would not be easily dismissed by the Clintons. The political calculations would begin immediately for the Democratic party.

If the Clintons could not adequately rebut the charges in the court of public opinion, powerful leaders in the Democratic party would argue that the Democratic electors should vote for somebody else, probably Gore. They would argue that it is for the good of the party and is not a betrayal of the popular vote since Gore was the people's choice to be vice-president and it is his job to step in when there is an emergency.

However, the Democratic electors would have to reach near unanimous agreement on this "dump Clinton" vote to avoid splitting their votes and denying any candidate an electoral vote majority. In that situation a runoff would be held in the House of Representative where each state gets one vote. If the Republicans control a majority of the state delegations, Bob Dole would win.

Under this scenario, prior to leaving office on Jan. 20, 1997, the president could pardon the first lady, but he could not pardon himself. Thus, the electors who vote on Dec. 16 may want a promise from the potential presidents (Gore and others) that they either will or will not pardon Bill. Any such promise would not be enforceable, but breaking such a promise might have political consequences for the Democratic party. Would the leadership of the Democratic party (minus Bill) want its electors to elect a president who would promise to pardon Bill or not pardon Bill?

How the Democratic party would resolve these problems is certainly open to speculation.

More certain is the fact that by saving his grand jury action until after the November popular vote, but unleashing it before Dec. 16, Starr can avoid charges of trying to influence the popular election and avoid reducing the credibility of his charges, while still taking action that could prod the Democratic party into dumping President Clinton before a second term, should he refuse to resign.

Los Angeles Daily Journal; San Francisco Daily Journal, October 18, 1996, p. 6.  These newspapers serve the legal community.

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