|
Ken Starr's Burden
Critics rail against the independent counsel,
but the law that gives him power is also to blame
By Jon Bonné
Court TV
Kenneth Starr was giving a sermon.
"The law is the law, the law is sacred," said the former federal judge and son of a Texas minister on February 5 as he stood in front of the Little Rock federal courthouse. "The facts have integrity and we're going to go about our job."
The independent prosecutor, who usually speaks in subtle -- even cryptic -- phrases about his work, for once sounded unequivocal about his mission and his belief that the truth would, in fact, out.
But how Starr has done his job has caused a groundswell of criticism against him for an investigation that began with Arkansas land deals and has ended up with a young White House intern and whispers of sexual and legal impropriety. Even Hillary Clinton hinted that Starr's hunt for answers about the relationship between President Clinton and former White House intern Monica Lewinsky was part of a "vast right-wing conspiracy."
Starr's opponents used the First Lady's comments as a point of departure for various theories about the independent counsel and his long-standing Republican ties, implying that he was ideologically disposed to attacking the President.
Starr has also taken flak for the seemingly incessant leaks from his office, for his lack of prosecutorial experience, and even for the way he was appointed to his post.
It is difficult at times to tell where the legitimate criticism ends and the speculation begins. In fact, it may not be the work his office has done that has brought Starr a legion of critics, but the manner in which he and his staff have gone about their tasks.
"His personal behavior is undermining the perception this is an objective investigation," says former independent counsel Michael Zeldin, who with Joseph Di Genova led a 1992 investigation of the Bush Administration's alleged misuse of passport files. "He has given his critics the ammunition to make that claim."
This sustained criticism -- both of Starr and the Office of Independent Counsel itself independent counsel process itself -- has focused attention back on the oft-debated law that gives special prosecutors their power.
The statute will expire in 1999, and after this latest controversy focus on special prosecutors and their powers, Congress is sure to have a battle royale over whether it should be renewed.
The law, in theory at least, seems clear in its scope: it sets up a process for impartial investigation of the most powerful people in the federal government, with its possible targets specified by job title or job level, starting with the President and moving down -- for a total of between 50 and 100 people.
But it is difficult to find anyone who doesn't think the law couldn't use at least an overhaul by reducing the number of people it covers to make it applicable only for the highest level of federal officials, or restricting the type of behavior it applies to. In fact, many of the criticisms aimed at Starr could potentially be nullified by changing the law that gave him his power.
RIGHT-WING CONSPIRATOR OR DUTIFUL INVESTIGATOR?
One issue the statute avoids entirely is the way in which politics can enter into a process that is supposed to be held to strictly legal standards.
In theory, any counsel is appointed based on a serious background in law and is supposed to look into allegations against their target without consideration for the political implications of his or her work. But politics often has a way of seeping into the process, no more so than in the case of Kenneth Starr.
Starr's long-standing ties to conservatives are apparent. His entry into government came when his boss, William French Smith, became President Reagan's first Attorney General and Starr followed him to Washington as his chief of staff. Reagan appointed Starr to the federal Court of Appeals in Washington, a post considered by many as second in importance only to the U.S. Supreme Court. Several years later, George Bush chose Starr as his solicitor general -- a partisan appointment, but also one of the most esteemed positions a lawyer could hope for. ("That hallway is one of the most sacred corners of the Department of Justice," says one former Justice staffer.)
While Starr worked under Bush, his name apparently came up twice as a potential Supreme Court nominee. But ultimately David Souter and Clarence Thomas were handed the posts.
All these appointments were examples of how the legal and the political are brought together. And even Starr's supporters readily admit that Starr was at one time a staple of the Republican legal community. But both parties have brilliant legal minds in their stables, some of whom are brought into public view as Supreme Court nominees and Justice Department officials. Some remain just out of direct sight.
And some of these partisan workhorses are eventually resurrected as independent counsels. As highly qualified jurists who are savvy to the workings of Washington, they seem to fit the job description perfectly.
Yet the statute is mute on the issue of these appointees' political affiliations. Instead, it sets only the most general guidelines about who can be chosen. No one already holding a federal post can take the job, but otherwise an appointee need only have enough experience and be able to "conduct the investigation and any prosecution in a prompt, responsible, and cost-effective manner." There is nothing beyond common sense to keep politics out of the investigation, and there may be no way to prevent it.
"While that's a noble idea, it's probably a naive one," says Katy Harriger, a Wake Forest University political science professor and expert on independent counsels. "You start to talk about the President or the Vice President, it's hard to talk about an investigation as non-political."
It is difficult to tell whether Starr benefits politically from his harsh focus on Clinton. Some point to his acceptance -- which he later admitted was a mistake -- of an endowed position at Pepperdine University partially funded by conservative firebrand Richard Mellon Scaife.
Critics also focus on the method of his selection. But despite the circumstances that surround it, the letter of the independent counsel law was followed, even to a fault.
TO CHOOSE A COUNSEL
As specified in the statute, the decision to appoint an independent counsel usually begins when the Justice Department holds a 30-day review, and then a 90-day review, to determine if a special prosecutor is needed to follow up allegations against a specific set of high-level government officials.
If both of the investigations pan out, a panel of three federal judges sift through potential candidates and select a counsel to lead the investigation -- a process the judges claim to be free of political influence.
In Starr's case, one of those judges -- David Sentelle -- has become the focus of partisan criticism that stems from a 1994 lunch he had with Senators Jesse Helms and Lauch Faircloth, just before the panel appointed Ken Starr.
The two long-time Clinton foes, the argument goes, must have somehow persuaded Sentelle (a Reagan appointee under scrutiny for choosing Starr long before the current round of criticism against the embattled special prosecutor) to name someone to the post who would put the President and his friends through a wringer.
Starr detractors also point to the questionable manner in which Starr replaced Robert Fiske, the original counsel looking into Whitewater. Because the independent counsel law was up for reauthorization in 1994, Janet Reno was forced to name Fiske herself. When the law was back in place, the judges sent Fiske packing and brought Starr in to continue the job.
Although Sentelle and fellow panel members John Butzner, Jr. and Peter Fay made clear they had no issue with Fiske's performance, they pointed out that he was appointed directly by Reno. Anyone chosen by an appointee of the administration being investigated, they said, needed to be protected "against perceptions of conflict" and so Fiske had to go.
Their logic may sound either starkly juridical or overly convenient to the interests of Clinton antagonists like Helms and Faircloth, but the judges pointed out at the time that they they were simply abiding by the statute's wariness to potential conflicts of interest involving the attorney general.
Besides, Starr's friends say, an appointment like this would be a likely post for such a man -- and the partisan cries about his appointment are just political ordnance.
"I didn't hear any complaints when the focus was on a Republican administration," says Washington attorney Herbert Miller, who represented Reagan aide Michael Deaver in his case brought by independent counsel Whitney Seymour. "I've known Ken Starr for many years. He's a highly competent lawyer and an honorable individual."
And while polls show that many people have problems with Starr's investigation -- and think he has political motives -- a University of Massachusetts study reveals that less than four in ten people know he is a Republican.
WHY EXPERIENCE MATTERS
Moreover, independent counsels have also come under attack for treating their fellow party members with impartiality. One of Starr's fellow Republicans and fellow independent counsels, Iran/Contra prosecutor Lawrence Walsh, was assailed by conservatives when he re-indicted former Defense Secretary Caspar Weinberger days before the 1992 Presidential election. Bob Dole accused Walsh of running an office that was "a hotbed of Democratic activist lawyers" and of leaking news of the indictment to the Clinton campaign.
Walsh -- who was a deputy Attorney General under Eisenhower -- also shares another trait with Starr about which the statute is notoriously vague: he brought no career prosecutorial experience to the job.
What he did bring was a half-century of experience as a lawyer and judge, more than enough to fulfill the requirement that appointees have "appropriate experience."
While no one really harped on gaps in Walsh's resume, Starr has been attacked on the premise that despite his accomplishments in the law, he lacks any experience as a prosecutor. That could potentially keep him from running his investigation like a career prosecutor might, but that doesn't make him unique.
"Ken Starr's not the first one who doesn't have experience as a prosecutor," says Harriger. "What the panel of judges has tried to do in all of them is have somebody who is respected in the profession."
Moreover, an independent counsel does not an investigation make. Starr may be the figurehead, but under him works an office of almost twenty lawyers, including three deputies who all bring serious experience as prosecutors to the job.
"He's got a team of people that are career law enforcement people," says St. John's University law professor John Barrett, an associate independent counsel in the Iran/Contra investigation. "I can't believe career FBI agents or career prosecutors would stick with him if it was a vendetta."
He also has advisers like Senate Watergate counsel Sam Dash, a Democrat, to counsel him on ethics. And again, the statute that gives him his power is silent when it comes to describing who Starr can hire to work in his office.
It specifies only that he can hire anyone he feels is necessary to do the job, and make suggestions about what they can be paid. No mention is made of necessary experience for deputy counsels or anyone else in the office. The rest is for Starr to decide -- and decide wisely, if he hopes to avoid criticism.
Those decisions, however, keep suspicious eyes glued to his every action.
THE PERILS OF POWER
One of his professional responsibilities has been to set the tone of the investigation. But with two offices -- in Washington and Little Rock -- and a small army of staffers, his ability to control his own investigation is likely diminished. That lack of control could make it more difficult for him to keep tabs on what his staff is doing.
"It should be that the independent counsel sets or defines the culture of the...operation, receives advice from staff, but makes the final decisions him or herself," says Zeldin.
Those offices have worked for nearly four years, sifting through seemingly endless stacks of documents, empanelling one grand jury after another and bagging a couple of trophies -- Webster Hubbell and former Arkansas governor Jim Guy Tucker. And once again, the law says almost nothing about how those offices should operate.
According to the statute, the counsel's office must adhere to general Justice Department guidelines, to prepare occasional progress reports and to keep an eye on the costs of the investigation. The Administrative Office of the U.S. Courts, which usually takes care of day-to-day operations in the federal court system, must offer the counsel's office some administrative help -- confidentially. And the counsel is entitled to office space and supplies.
But guidelines about how the office should be run are primarily up to the lead counsel, much the same way that a U.S. Attorney sets the tone for a district office.
One guideline often -- but by no means always -- followed is that prosecutors are not supposed to talk about investigations in progress.
Yet no other independent counsel investigation has been so transparent as Starr's. The linchpin for a counsel's work is secrecy -- at least until they finish their work -- and the Whitewater investigation has been closely tracked by the media and Clinton critics from day one.
"You're going to take a lot of criticism," says Barrett, who faced ever-increasing censure as part of Walsh's team when the messy endgame of Iran/Contra brought the focus back on the investigators. "I'd much rather investigate Archer Daniels Midland or Microsoft. That's what makes being an independent counsel a bad assignment."
In public, Starr is terse when confronted by the press, at times even didactic about the investigative process -- and always mindful to say that he can't discuss his office's ongoing work.
But his office has seemingly been leaking information like a sieve, so much so that Clinton lawyer David Kendall announced on February 6 that he would be looking into criminal charges against Starr's staff for leaking confidential information about their work -- including highly secret grand jury proceedings. Others who have held the job are harsh when it comes to this particular aspect of behavior by Starr's office.
"It's a grotesque thing and a total abuse of the office and will destroy its effectiveness," says one former independent counsel.
When it comes to talking about their work, most independent counsels are remarkably tight-lipped. Some won't even talk about their investigations long after they've wrapped up. And some, like Zeldin and Di Genova, made very clear to their staff that leaks would not be tolerated.
They made the rules clear to their staff: Bring politics into the office and you would be fired. Speak to the press and you would be fired. Leak information? Fired.
Still, the temptation to divulge is certainly great for staffers inside a counsel's office. The material they handle is coveted by politicians and press alike, and the requests to talk are almost non-stop.
"You've got journalists breathing down your back all the time, and so obviously you're in the hot seat," says a former special prosecutor.
In fact, these leaks could become his and his staff's greatest liability, whether they are perpetrated by staff members with an agenda to forward or are simply an attempt to give unofficial evidence that they are doing their jobs -- or any number of other reasons.
One way to resolve such problems is to get rid of independent counsels altogether. Some critics of the counsel law believe the role of the independent counsel could be filled by giving broader powers to the Justice Department or implementing a watchdog in the White House akin to the inspector general present in most federal agencies.
Another possibility would be to vest the the Judiciary Committees in Congress with more power to choose attorneys general who are fiercely independent from the White House or to choose investigators who are free of political bias against their subjects.
"I'm not sure it's worth having government mechanisms planning for the John Mitchells of the world," says Kathleen Clark, a former counsel for the Senate Judiciary Committee, referring to the attorney general squeezed into resignation by Richard Nixon and later convicted for his role in Watergate. "The Senate Judiciary Committee has power right now it doesn't currently use."
So does the House Judiciary Committee, where lead Democrat John Conyers has authored reforms for the statute that add several new requirements to the selection process. (Jay Dickey, an Arkansas Republican, has written a similar set of changes.) The changes call for more stringent selection requirements -- including language in Conyers' bill that may be a not-so-subtle dig at Starr which requires all potential nominees to have "substantial prosecutorial experience" -- as well as more power for the attorney general to intervene in the process if potential abuses are spotted and more direct oversight of the entire process.
That process was created two decades ago, when the Ethics in Government Act institutionalized the role of the special prosecutor created during Watergate. In the course of those twenty years, the limits of the office's power have been tested to extremes.
Whether it can survive will depend on its supporters' ability to ensure that the process can remain untarnished by politics and focused on the law, and to prove that the people appointed to root out abuses of power can use their own substantial power responsibly.
February 23, 1998
| 
Full Coverage