Special Prosecutor Kenneth Starr

       It is tempting, Mr. Turpen, to respond in kind to your strident attack on Independent Counsel Kenneth Starr. But SLATE’s readers presumably can recognize, and appropriately discount, a politically motivated attack when they see it. I suspect, however, that they might be able to evaluate your accusations more objectively if they had a few facts to balance against your rhetoric.
       I should start by confessing a bias in favor of Kenneth Starr. I have known Starr since he joined my law firm as a young associate in the early ‘70s, where he practiced, except for his clerkship years, until we both left the firm in early 1981 to join the U.S. Department of Justice: Ken as the chief of staff to the attorney general; I became an assistant attorney general. We worked together closely at the Justice Department, and we have remained in contact with one another during Ken’s subsequent tenure as a judge on the U.S. Court of Appeals for the District of Columbia Circuit, then as solicitor general of the United States, and thereafter in private practice and as independent counsel.
       For the 25 years or so that I have known Ken Starr, I have never known him to be other than scrupulously honest, fair, open, and extremely conscientious and principled. He has lived in public life for over 15 years in a city where few lapses go unnoticed. Yet, until the attacks by Clinton administration surrogates such as James Carville, I have never heard anyone suggest that Ken has ever conducted himself in less than a thoroughly honorable manner. There are surely others in this city about whom the same might be said, but they are very few in number.
       Thus, I am convinced of Starr’s integrity–so much so that I believe if Clinton had to be investigated, he should be grateful that his investigator is Kenneth Starr. I have seen Starr work in public and in private, often under considerable stress, and occasionally under pressure to make politically expedient decisions, and I have never seen him cut a corner or take a politically tainted tack. I know nothing, of course, about Starr’s independent-counsel investigation beyond the information known to the public, but I have neither heard nor seen anything that would reflect badly on him or on the fairness of his very difficult mission. I am certain that he will give the same close and fair look at the evidence concerning President and Mrs. Clinton as he would have if he had been asked to investigate former President Reagan. If anything, I expect that he will bend over backward to avoid a precipitous decision involving the president of the United States or the first lady.
       One other preliminary. I am no fan of the independent-counsel law. I have spoken, written, and testified (as recently as last year) against the statute, and I have advocated its repeal. Indeed, Starr and I helped draft the Reagan administration’s opposition to the law’s reauthorization in 1982. But the law is in existence, pushed through most recently by a Democratically controlled Congress and signed by Clinton. And its constitutionality has, regrettably in my judgment, been upheld by the Supreme Court. To the extent that its provisions operate in a manner that the president and his allies now deplore, their recourse is to Congress. It is most inappropriate for the president and his surrogates to attack personally the person appointed by a court to enforce the law’s requirements.
       Mr. Turpen, you refer to former Judge Starr as “politically partisan” three times in your opening lines. Not much doubt about your theme. But you fail to acknowledge that it was Clinton himself who called for the appointment of an independent counsel to investigate the Whitewater charges swirling around him. Attorney General Janet Reno initially resisted because, she said, anyone she appointed would not have the same credibility as an independent investigator appointed by an independent appointing authority. But she acceded to the president’s request and appointed a Republican, Robert Fiske of New York, to be an independent counsel. Later that same year, when the White House pushed through reauthorization of the independent-counsel law that had lapsed the previous year, the attorney general followed the law and applied to the independent-counsel court for appointment of a truly independent counsel to finish the mission Fiske had begun. Although she urged the court to reappoint Fiske, the court instead appointed Starr for the job, agreeing with the attorney general’s initial point that the public would have a higher comfort level with an independent counsel appointed by a court rather than by a subordinate of the person who was to be the subject of the investigation.
       The federal appellate judges who are charged by law with appointing independent counsels selected Starr–a person who served for seven years at top levels in the Department of Justice, had helped the attorney general administer the independent-counsel law, had clerked for a federal appellate court and the chief justice of the United States, and had served with distinction for several years on the U.S. Court of Appeals in the nation’s capital (the same court from which three current Supreme Court justices were appointed, and the court from which the president selected his second White House counsel). Starr had twice been overwhelmingly confirmed by a Democratically controlled Senate for two of the nation’s most important positions. His appointment as independent counsel was almost uniformly praised, even by Clinton’s staunchest supporters.
       The selection of Starr was consistent with prior independent-counsel appointments. Yes, he is a Republican. But Presidents Theodore Roosevelt, Calvin Coolidge, and Harry Truman had appointed special prosecutors from opposing parties to investigate charges against their respective administrations. And Harvard law Professor Archibald Cox, selected to investigate President Nixon, was an active Democrat who had earlier taken a leave of absence to work full time for President Kennedy’s election–and, like Starr, was a former solicitor general. Reno selected Robert Fiske, a Republican and former U.S. attorney, to investigate the president. Starr’s credentials are therefore entirely in line with past selections for such responsibilities. And the attorney general has repeatedly asked the independent-counsel court to expand Starr’s jurisdiction, as recently as a few months ago, and those requests have been granted.
       But now Starr is under attack from the Clinton camp. Carville represents the most irresponsible wing of that group, having threatened Starr with damage to his “kneecaps” if Starr should fail to live up to Carville’s demands, behavior which, had it come from anyone other than a known buffoon, would probably have been prosecutable. And you charge Starr with being a “politically partisan” investigator who is taking too long and spending too much of the government’s money. Why are these charges suddenly being made? It is not hard to figure out. To the surprise of the president’s spokesmen, Starr and his staff of career prosecutors have presented evidence to Arkansan grand jurors that has led to numerous indictments. And the consequent prosecutions have produced unanimous votes by Arkansan jurors convicting the president’s business partners and the then-incumbent governor of Arkansas of federal crimes. Altogether, including jury verdicts and guilty pleas, Starr’s office has obtained 12 criminal convictions of persons connected, in one way or another, with Clinton.
       Now, Susan McDougal, one of Clinton’s convicted business partners, has refused an Arkansan federal judge’s order to answer questions by an Arkansan grand jury. And, as requested by the attorney general, Starr’s jurisdiction now includes the White House Travel Office firings and the FBI’s transmittal of hundreds of sensitive, confidential Republican background files to White House political dirty-trick experts. New allegations against the president pop up in the nation’s newspapers with remarkable regularity. And these trials and convictions and expansions in jurisdiction and refusals to testify have consumed time and money, about $17 million, according to your estimates–an amount which, incidentally, is less than half the amount spent on Clinton’s second inauguration festivities, a significant portion of which was publicly financed. So now the respected former judge and former solicitor general is suddenly a “political partisan.” It figures.
       Let’s turn to your David Letterman-like “top 10” list:
       1) Starr has handled appellate litigation on procedural issues for the tobacco industry. But, according to reporter Michael Isikoff in a recent SLATE article, the Williams & Connolly firm, which Clinton selected as his private counsel in connection with the independent-counsel investigation, also represents the tobacco industry. And Bernard Nussbaum, Clinton’s first White House counsel, came from and returned to a firm which represents the tobacco industry. And Clinton’s fourth White House counsel, Jack Quinn, came from a firm which represents the tobacco industry. (Average tenure for a Clinton White House counsel is about a year.) And the Little Rock firm at which the president once worked and from which he drew his deputy White House counsel and first friend, Bruce Lindsey, also does legal work for the tobacco industry. And the Miami firm from which the Democratic National Committee selected its finance chairman (read “fund-raiser”) performs legal services for the tobacco industry. And the late Democratic Party Chairman and Commerce Secretary Ron Brown and current Clinton Whitewater spinmeister Lanny Davis both came from a Washington law firm that represents tobacco interests. Finally, Fiske, the independent counsel initially appointed by Reno, also came from a firm with tobacco clients.
       Thus, the charge that lawyers who work for tobacco interests cannot be fair to Clinton is a complete fraud. Virtually every lawyer selected by the president or his subordinates for important roles for him or his administration has come from a firm with tobacco clients. Clinton obviously thinks that tobacco-industry lawyers are well-qualified and can be trusted to represent him. Why can’t they be trusted to investigate him? Mr. Turpen, your first point was not only badly researched, but patently spurious.
       2) You call Starr a “One-Man Republican Political-Action Committee” because he has given $10,000 to Republican candidates in the past three years. But Starr contributed half of that amount in 1994, before he became independent counsel; over half the remainder to personal friend and Justice Department colleague Oklahoma Gov. Frank Keating; and the remainder to his law firm’s PAC, over whose contribution decisions he exercised no control, and which made substantial contributions to Democrats as well as Republicans.
       In any event, $3,000 per year in political contributions is puny indeed for a Washington, D.C., lawyer, and certainly wouldn’t get on the radar screen for the Clinton administration, which has received more money than that laundered through Buddhist nuns, and which sells sleep-ins in the Lincoln bedroom at the White House for hundreds of thousands of dollars per night.
       3) The Resolution Trust Corp. lawsuit against Starr’s law firm antedated Starr’s employment with that firm and had nothing to do with him. And the law-firm screen that insulated Starr from the incident–the traditional and approved method for dealing with such matters–has been blessed by ethics officials. In short, this charge has proven to amount to nothing at all, and, incidentally, bears no relationship to your “politically partisan” theme.
       4) Starr did not provide legal advice in the Paula Jones civil suit. That assertion is simply false. He was approached by a women’s group that was interested in filing a friend-of-the-court brief in the Jones case, but the brief was never filed. The other brief to which you allude had nothing to do with politics or Clinton, and preceded Starr’s appointment as independent counsel.
       5) Starr’s office allowed a congressional committee conducting a lawful and fully authorized investigation into the Vince Foster death to examine the briefcase from which the Foster “suicide note” was mysteriously extracted by Clinton’s aides several days after the deputy White House counsel’s death. The committee wanted to know how the 27 pieces of paper could conceivably have had been “overlooked” by White House aides who were simultaneously holding Justice Department investigators at bay. For obvious reasons, the committee wanted to see the actual briefcase. The request was made jointly by both Republicans andDemocrats on the committee. No injury was done to the briefcase.
       “As a former prosecutor,” you say that you find this conduct by Starr’s office to have been a breach of prosecutorial ethics. No other ethics authority familiar with the facts has come to that conclusion. Indeed, it would have been surprising and highly disrespectful to Congress for Starr to withhold this cooperation from a legitimate bipartisan congressional investigation. Of course, someone attacking Starr and defending the Clinton White House would probably not see anything wrong with withholding information from Congress.
       6) No one has ever established that the two pieces of published information to which you refer resulted from leaks from Starr’s office. Indeed, Starr has responded to these charges before, and his responses have never been refuted. Repeating the allegations does not make them true. The fact is, as most reporters in Washington would attest, Starr’s investigation has been remarkably airtight.
       7) It is difficult to see what possibly could be wrong with Starr representing the state of Wisconsin on a First-Amendment constitutional issue in the Wisconsin Supreme Court. The president had no dog in that fight. He certainly has never taken any clear position on the voucher issue. Were the Wisconsin governor and Legislature so wrong with their voucher program that to defend them is somehow to be an enemy of the Clinton administration? This is another example of the absurd lengths to which the Starr critics will go to manufacture an issue.
       8) Starr’s measured and cautious response to the flamboyant charges made by Susan McDougal was completely appropriate. After being convicted of a felony and ordered by a federal judge in Arkansas to answer questions from an Arkansan grand jury, McDougal took her case to a national television audience instead of responding to a lawful subpoena and a lawful court order. Later, after McDougal’s appeal had been denied, Starr was right to inform the American public of the facts in response to McDougal’s ludicrous charges. What surprises me is that a former prosecutor would defend McDougal’s contumacious and legally indefensible refusal to respond to a lawful investigation. I doubt that you would be so sympathetic if, as a prosecutor, you were faced with similar defiance.
       9) The “bogus” charges against Robert Hill and Herb Branscum Jr., as you characterize them, were approved by an Arkansan grand jury, and an Arkansan federal court refused to dismiss them. The jury was divided on the question of guilt or innocence on seven of the 11 charges. I presume from your comments, Mr. Turpen, that no case ever brought by your office ever resulted in anything other than a conviction on all counts. Congratulations. But, if so, you are the only prosecutor in this country to have such a record.
       10) Sam Dash, who served as a Watergate special prosecutor, has fully approved Starr’s actions. While he may not agree that he would have taken every step that Starr has taken, most honest advisers would probably say the same thing. But on the issue of whether Starr’s conduct was both lawful and fully ethical, Dash is firmly and unequivocally on Starr’s side, and there is no comfort for the Starr critics in Professor Dash’s remarks.
       Incidentally, Congress expressly intended that independent counsels be free to work on unrelated matters during their independent-counsel tenure, and nearly all the others have done so. One could argue that this should be changed, and I have advocated such a change, but Democratically controlled Congresses passed the law in this form four times, and the Clinton administration made no such complaint when the law was passed.
       I will close by offering just two final observations:
       1) You and Carville passionately object to what you refer, in quotation marks, as Starr’s “nationwide speaking tour. It is not clear who you are quoting, probably Carville, but your point is unclear. True, Starr spoke at a law school’s 10th anniversary and ABA accreditation ceremony. His speech was about judicial decision-making, with heavy doses of Oliver Wendell Holmes, Felix Frankfurter, and Learned Hand. What was wrong with the speech? Well, the law school is associated with Pat Robertson and the Christian Broadcasting Network. Sen. McCarthy would recognize your technique.
       The other speeches to which you object? Two extraordinarily cautious–bland is the best description–discussions of how the independent-counsel law works and public facts of the Clinton investigation to date. The speeches were delivered to two respected and nonpartisan civic and legal groups; the speeches were public; the texts were available to everyone; no secrets were revealed; the tone was reserved; and neither speech contained a single statement to which any rational person could reasonably object. In short, the “speaking tour” charge is a giant nothing which, as much as anything, reveals the Clinton surrogates’ charges as completely lacking in substance.
       2) Starr’s investigation was launched by Clinton and his attorney general. Starr was selected based on the same general job criteria typically used to select special investigators: respected lawyers with a history of public service and Justice Department experience, from the opposite political party of the persons being investigated. Starr was appointed and is conducting his investigation pursuant to a statutorily prescribed process endorsed and pushed through Congress by Clinton and his allies. Starr’s investigation has been expanded–and lengthened–because other charges have arisen that Clinton’s attorney general has asked him to examine. And, as both the Washington Post and the New York Times have repeatedly explained in editorials, as recently as this week, Clinton’s White House has been the single greatest contributor to the length and dimension of Starr’s investigation–through its persistent evasions, mysterious behavior, and questionable conduct.
       Mr. Turpen, you have no legitimate complaints against Kenneth Starr. Your rhetoric, and Carville’s, reflects a perhaps real concern that Starr’s staff may obtain yet more indictments–and that you wish to tarnish those indictments in advance. Your campaign is not working. It is only making the Clinton administration look less principled and more desperate.