{"id":50280,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/an-interview-with-benjamin-wittes-author-of-starr-a-reassessment.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"an-interview-with-benjamin-wittes-author-of-starr-a-reassessment","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/an-interview-with-benjamin-wittes-author-of-starr-a-reassessment.html","title":{"rendered":"An Interview with Benjamin Wittes, Author of Starr: A Reassessment"},"content":{"rendered":"\n
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AN INTERVIEW WITH BENJAMIN WITTES, AUTHOR OF STARR: A REASSESSMENT<\/u><\/h1><\/span>
\n

By JULIE HILDEN<\/h2>
<\/a>\n\n—-\n
Friday, Jul. 18, 2002
\n<\/div>\n\n\n

Benjamin Wittes, i>Starr: A Reassessment<\/i> (Yale University Press, 2002)<\/p>\n\n

Benjamin Wittes is an editorial\npage writer for The Washington Post, in which capacity he writes editorials on\nthe law and other topics. \nAccordingly, Wittes watched the Clinton impeachment proceedings play out\nfrom the ideal vantage point the Post provided. Now Wittes has taken a longer view on the controversy, and\nin particular on Independent Counsel Kenneth Starr’s role in it, with his fascinating,\ncontrarian new book, Starr: A Reassessment<\/u> (Yale Univ. Press 2002). <\/i><\/p>\n\n\n\n

Taking aim at many of the\nexisting works on the controversy, from Jeffrey Toobin’s A Vast Conspiracy<\/a>,\nto Joe Conason and Gene Lyons’s The Hunting of the President<\/u>, Wittes is\nintent on getting beyond the “angry denunciations” of Starr to the heart of the\nmatter. Rather than submitting a\npolemic, Wittes \u0096 having been granted access to interview Starr for ten hours\nabout the course of the investigation \u0096 offers instead an analytical, scholarly\nwork of “unapologetic revisionism that examines his investigation through the\nparticular lens of his understanding and interpretation of his role under the\nindependent counsel statute.” <\/i><\/p>\n \n\n\n\n\n

As Wittes explains in the\nPreface to his work, “My argument is that Starr’s great error was not one of\nmalicious motive or evil tactics, but, rather, that he fundamentally\nmisconceived his role, taking a statute designed to authorize a conventional\ncriminal investigation and finding in it license to conduct the broadest of\ninquiries, an investigation that he never intended to use chiefly as a vehicle\nfor punishing crimes. Starr saw\nthe independent counsel’s office as a kind of truth commission \u0096 a conception\nof the role that, while adopted in good faith, was entirely wrongheaded.” <\/i><\/p>\n\n\n\n

This argument \u0096 at odds with\nmost portrayals of Starr, whether by Republicans, as a hero, or by Democrats as\nthe Devil \u0096 has caused its own share of controversy. FindLaw columnist Julie Hilden (who knows Wittes socially)\ninterviewed Wittes, via written questions, regarding the book’s arguments and\nhis experience writing it. The\ntext of the interview follows: <\/i><\/p>\n\n\n\n

Q: What\ninspired you to write the book? \nWas it dissatisfaction with the existing portrayals of Starr, and the\nscandal? How do you see your book\nas different from the existing works on these topics? What was your aim in writing the book?<\/b><\/p>\n\n\n\n

A: It\nsounds a little churlish to say that the book was motivated by dissatisfaction\nwith the existing literature. That said, it was definitely part of the impetus.\nHaving watched the investigation throughout the Monica Lewinsky saga, I was\nfilled with questions by the time Starr stepped down: What had motivated his\nmore controversial decisions? Was the direction the investigation took in 1998\nchiefly a function of the independent counsel law itself or was it a function\nof Starr’s behavior? If the latter, should we regard Starr’s behavior as\nreasonable or as excessive? <\/p>\n\n\n\n

The extant literature, and many of the books that followed\nStarr’s resignation, either presumed the answers to these questions or simply\nattempted to tell the story of the investigation without analyzing it at all.\nThe result was that the story itself became exceptionally well developed in the\nliterature. Our analytical understanding of what happened, however, was far less\ndeveloped than the factual understanding. <\/p>\n\n\n\n

Specifically, the existing literature, despite its narrative\nrichness, had done little to explain the figure of Kenneth W. Starr. Portrayals\nof him tended \u0096 with certain notable exceptions \u0096 to cast him as either a demon or\na saint, either a man who was fundamentally evil or a man beyond reproach. None\nof this seemed very likely to me, and none of it survives even a cursory\nconversation with him. He is not evil; far from it. Yet in my conversations\nwith him, I was struck by the magnitude of some of his errors and how\ndifferently the Clinton presidency might have played out had he played his\ncards differently, more wisely. The book was inspired by the desire to begin\ntrying to make sense of it all, to begin developing a more historically\nplausible understanding of the events that led to the Clinton impeachment.<\/p>\n\n\n\n

\n\nQ: One\nof your main claims is that Starr had a good-faith misinterpretation of the\nIndependent Counsel statute \u0096 in Starr’s view, you contend, the statute both\nset up a sort of “truth commission,” and prevented Starr from narrowing its\nscope. You also note that Starr\n“always hated the statute and saw it as a dangerous affront to the separation\nof powers.” <\/b><\/p>\n\n

Yet if that is true, why\ncouldn’t he simply have declined a job in which he didn’t believe in the first\nplace? He had the power to say no\n \u0096 as he did to the tobacco companies he also represented. His position sounds to me too much like\na Nuremberg defense: I was only taking orders from the statute. <\/p>\n\n

If the statute, Starr believed,\ncreated a wide-ranging truth commission, and a truth commission is antithetical\nto our democracy, as he also seemed to believe (if he concurred with Scalia’s Morrison\nv. Olson<\/a><\/i><\/b> dissent), why in the world\ndid he volunteer to enforce this unconstitutional and undemocratic, in his\nview, statute? Can’t an\nIndependent Counsel also make an independent constitutional judgment?<\/p>\n\n

And what about the numerous\npeople who tried to correct Starr’s misinterpretation of the statute during the\ninvestigation? After a while,\ndoesn’t his clinging to it actually become an act of bad faith, or at least a\nvery bad choice once it is clear that other interpretations are possible?<\/p>\n\n\n\n

A: There\nare several points here. First, you ask why Starr took a job under a statute\nwhich he had always hated. I probed him on this a lot, and I find his answer\npersuasive. Starr regarded Morrison v. Olson<\/a><\/i> as having settled the question of the statute’s constitutionality. The\nopinion was a 7-to-1 decision, and it was written by the Chief Justice, so it\nclearly spoke authoritatively for the court. Following the opinion, Congress\nreenacted the statute in 1994, so the legislative branch regarded it as sound\npolicy, and the statute had been invoked by the attorney general in Whitewater.\nThe fact that Starr personally disagreed with both the policy and\nconstitutional judgments at issue was no longer the extant point for him. <\/p>\n\n\n\n

Rather, the question for Starr was whether, given these\njudgments by the responsible branches, he was an appropriate person to serve as\nan independent counsel. He determined that he was. This latter judgment \u0096 given\nhis lack of prosecutorial experience \u0096 seems to me far more questionable than the\ndecision, given his distaste for the law, to serve under it. I for example,\noppose the death penalty, yet I would not hesitate to serve on a death penalty\njury; if everyone with my sensibilities, after all, declined service, death\npenalty juries would be populated entirely by people inadequately skeptical of\nthe policy and its dangers. By the same token, if everyone with principled\nquestions about the independent counsel statute declined service under it, the\nuniverse of possible independent counsels would be limited to those who lacked\nskepticism of it or sensitivity to its potential dangers. Starr, it is worth\nnoting, is not the only skeptic of the statute to have served as an independent\ncounsel. <\/p>\n\n\n\n

That said, I think your Nuremberg defense point, though\nungenerously worded, raises an important dimension of Starr’s relationship with\nthe statute. For Starr did not merely agree to serve under the statute. He took\na law to whose dangers he had been perceptively attuned early on and proceeded\nto adopt a reading of that law that maximized, rather than minimized, those\ndangers. This seems, as I put it in the book, positively passive-aggressive.\nAnd he does have a tendency to fall back on a argument that sounds a great deal\nlike “the statute made me do it.” In my judgment, this argument simply cannot\nbear the weight he puts upon it. <\/p>\n\n\n\n

Why he did this remains, in my view, a great mystery, and\nthose disinclined to believe him are free to believe that bad faith provides\nthe simplest answer. I believe this judgment is a mistake, however. My\nprinciple reason for rejecting it is an admittedly intangible one: Starr is\npassionate about his view of the law, and he defends it with what, to my mind,\nseems like obviously sincerity. He articulated what I term the truth-commission\nvision of the law internally within the office early on in the investigation,\nand clung to it over the arguments of some of his staff throughout the probe.\nWhile some people within the office disagreed with him on the merits of the\nvision, I have never spoken to anyone who knows Starr who believed for a minute\nthat his view was anything other than the real thing. As Paul Rosenzweig, one\nof Starr’s prosecutors, recently wrote in Legal Times<\/i>: “From my very first day in the office, I was aware\nof the two diverging possible interpretations \u0096 both the Wittes position that the\nindependent counsel, in effect, stands in no different relationship to a\ncriminal investigation than the attorney general, and the interpretation Judge\nStarr eventually adopted, that the act imposes on the independent counsel a\ngreater investigative obligation. The issue was widely discussed within the\norganization and Judge Starr’s resolution of the question was well-known to all\nof us in the office, long before the Lewinsky matter began.” <\/p>\n\n\n\n

I understand that Starr’s more vociferous critics will not\nbe persuaded that his view of the statute was adopted in good faith on the\ntestimony of his close aides. I, however, see no reason to doubt either him or\nthose, like Rosenzweig, who back him up. <\/p>\n\n\n\n

In answer to your final question, adopting the\ntruth-commission vision was very clearly a bad choice. As I describe at length\nin the book, the vision is difficult to reconcile with the text, purpose, or\nhistory of the independent counsel law, and it dramatically augments the\nproblems inherent in the statute. Starr’s vision of his role, at key points in\nthe investigation, pushed him in exactly the wrong direction: towards\never-mounting confrontation with the rest of the executive branch. Where a\nnormal prosecutor, one interested chiefly in bringing actual criminal cases, might\nhave let matters rest, Starr \u0096 devoted to developing and reporting the whole\nstory \u0096 felt obligated to keep matters open, pursue additional leads, and take\nother investigative steps in order to get at some larger truth. Importantly,\nStarr justifies many of his key decisions in terms of the need to get the\ntruth. This attitude greatly lengthened the investigation and prompted many of\nthe steps for which Starr is commonly accused of excess. To the extent that\nsome of this was avoidable, it seems to me clearly a bad choice not to have\nstuck more narrowly to the prosecutorial questions the case posed.<\/p>\n\n\n\n

Q: What\ndo you think of Janet Reno’s interpretation of the Justice Department’s role\nunder the statute? She made\nreferrals in the case of Clinton but not, later, in the case of Gore. Was she correct in her judgments? In your view, if she thought that Starr\nwas out of bounds in his investigation, was a reasonable response on her part\nto withhold future referrals once she had learned the havoc they could bring?<\/b><\/p>\n\n\n\n

A: I’m\nquite soft on Reno’s handling of the independent counsel law, which put her in\nan absolutely impossible position. She began the administration as a believer\nin the law, a position she lived to regret and reverse. Where she triggered the\nstatute \u0096 as in Whitewater, and cases such as that of Mike Espy and Henry\nCisneros \u0096 she created institutions that caused no ends of problems for the\nexecutive branch, herself included. So as the administration went on, she\nbecame more reticent, and declined to invoke the statute in matters involving\ncampaign finance. This shift, in turn, generated allegations that she was\nshilling for the White House. It was a no-win situation, and I think her\nbehavior was actually quite reasonable.<\/p>\n\n\n\n

Her specific relation with Starr’s shop is a complicated\nstory. Through most of the investigation, the Justice Department had no serious\nproblems with Starr. Rather, in contrast to their relations with the\nindependent counsels in the Cisneros and Espy cases, department officials got\nalong well with the Starr operation and felt reasonably comfortable making\nadditional referrals to it. So when the Travel Office and FBI files matters\narose in 1996, sending these over to Starr, rather than creating a new office,\nseemed like the logical step for all concerned. Even when Linda Tripp showed up\non the scene, as late as January 1998, relations were good enough that the\ndepartment did not seriously consider either having a different independent\ncounsel examine the Lewinsky matter or investigating it in-house. The\nrelationship between Justice and Starr only deteriorated later, as the Lewinsky\ninvestigation heated up. Starr was irate that Reno failed to defend him against\nWhite House attacks, and the Justice Department was deeply irritated by Starr’s\nefforts to secure testimony from Secret Service agents. But it is worth\nremembering that, for most of Starr’s operation, there was a fair degree of\ncomity between the Starr shop and the Justice Department. This comity, it seems\nto me, generally explains Reno’s willingness to make additional referrals that\nseem, in retrospect, hard to understand.<\/p>\n\n\n\n

Q: Even\nif Starr stuck to his interpretation of the statute, shouldn’t he also have\nconstrued it to have some constitutional limits, especially where Lewinsky’s\nsexual privacy was concerned? \nThe report he submitted seemed to be, at a minimum, an assault on\nher. Shouldn’t he be faulted for\nits lascivious detail?<\/b><\/p>\n\n\n\n

A: I\nhonestly don’t know how he could have imposed meaningful limits on the\ninvestigation after he had adopted the truth commission interpretation \u0096 which\nseems to me an excellent argument against the underlying truth commission\nvision itself. The proper course from the outset, it seems to me, would have\nbeen to stick narrowly to the criminal questions the Lewinsky case presented.\nStarr should have gotten her testimony quickly, secured Clinton’s version of\nevents, and done whatever ancillary investigation he needed to do in order to\nmake his charging decisions. Had he proceeded this way, he would have undoubtedly\nbeen obliged to make a referral to Congress, but he need not have filed a\nnarrative document, nor need he have waited until many months after the matter\nbroke to shift the action to Congress, which \u0096 unlike the independent\nprosecutor \u0096 is politically accountable for the questions it asks and for the\nattention it devotes institutionally to matters that invade the sexual privacy\nof young women. The truth commission vision, for reasons I explain at length in\nthe book, precluded this approach and made Starr into the impeachment\ninvestigator for a Congress uneager to take on a delicate and politically\nunpopular subject. But it seems to me that the Rubicon was crossed once Starr\nagreed to play this role. The role of truth commissioner is very hard to limit\nonce it has been adopted. The answer, it seems to me, is for prosecutors to\nremember the purpose of a grand jury investigation \u0096 which is a punitive, not an\nexpository function \u0096 and to hew carefully and rigorously to that. If Congress\nwants separately to use its committees to expose the truth or to authorize a\nspecial commission to do so \u0096 like, for example, the Warren Commission \u0096 that is a\ndifferent job description for a different actor. But it is folly to accept a\ntruth-commission role for a prosecutor and then try to limit the privacy\ninvasion that will ensue. <\/p>\n\n\n\n

Q: While\nyou note that Congress leaked the Independent Counsel’s report and its sheaves\nof salacious details without Starr’s express approval, wasn’t it inevitable, in\nthat political climate, that it would indeed be leaked \u0096 and isn’t that leak\nthen chargeable to Starr because it was foreseeable by him?<\/b><\/p>\n\n\n\n

A: First\nof all, “leak” is the wrong term for what Congress did. It passed a resolution\nformally releasing that material. There was nothing surreptitious about it. It\nseems almost unbelievable that Starr did not anticipate the release, but I am\nfairly convinced that he actually did not expect it. Rather, he seems to have\nissued the referral for Congress’ eyes and assumed members would act\njudiciously. This seems crazy in retrospect, and I think Starr can be\nreasonably faulted both for the text of the referral itself (which was wildly\nexcessive) and for not foreseeing that it would inevitably \u0096 by leak or by formal\ndisclosure \u0096 be released. That said, Starr’s judgment was at least a little less\ncrazy from his vantage point, acting in real time. After all, Leon Jaworski’s\nWatergate referral has, to this day, never become public. (This, incidentally,\nis a scandal in its own right; at some point, grand jury secrecy ought to\nlapse, and the historical interest in a document of that type ought to prompt\nits public disclosure.) So there was something of a history of grand jury\nreferrals being sent to Congress with an expectation that they would serve\ncongressional impeachment, but not public, purposes. The difference, of course,\nwas that in Watergate, Congress was conducting its own investigation. Here, by\ncontrast, Congress was deferring to Starr, waiting for him to deliver the\nstory. Once he did, Congress did not mean to use his work merely to supplement\nits own investigation; Congress did not wish to conduct its own investigation\nof an embarrassing subject at all. So members simply relied on the facts as\nStarr had gathered them. His, in other words, was the only investigation. The\nfact that Congress was using him to conduct its constitutional function \u0096 which\nwould have greatly troubled a more politically adept actor than\nStarr \u0096 necessitated the release of his work.<\/p>\n\n\n\n

Q: You\nassert that there were times when Starr refrained from acting to the full\nextent of his power. But there\nwere many other examples where he taxed it, and drew criticism from seasoned\nprosecutors \u0096 the subpoenas for Lewinsky’s bookstore and psychiatric records,\nputting Sidney Blumenthal before the grand jury, the treatment of Lewinsky in\nthe Pentagon City mall, and calling her mother to testify before the grand\njury, are only a few examples. <\/b><\/p>\n\n

Meanwhile, the only instances of\nrestraint you cite are his declining to indict the President or First Lady, and\ndeclining to submit a Whitewater impeachment referral. But the indictments would have been\nhistoric rarities \u0096 and there is serious controversy as to whether a sitting\nPresident can be indicted \u0096 and the ultimate report on Whitewater suggested\nStarr didn’t have the goods. <\/p>\n\n

So where is the restraint? Isn’t it fair to say that, in fact,\nStarr never refrained?<\/p>\n\n\n\n

A: No.\nThere are numerous instances in which Starr could have taken still more\naggressive steps and declined. The office seriously considered indicting several\nWhite House staffers for lying in connection with the Travel Office\ninvestigation, for example, but did not do so. It could have retried Julie\nHiatt Steele and Susan McDougal in cases in which juries hung. There were even\ntimes where Starr, in my view, was insufficiently aggressive. He spent many\nmonths requesting Bill Clinton’s voluntary testimony before the grand jury\nbefore forcing the president’s hand with a subpoena. I would not have been so\ndeferential, certainly not in the context of the attacks the White House was,\nat that time, conducting against Starr. Clinton’s testimony \u0096 like\nLewinsky’s \u0096 should have been secured immediately, by subpoena if necessary. <\/p>\n\n\n\n

I want to stress, however, that I do not mean to suggest\nthat Starr was generally restrained. My argument is, to the contrary, that the\ntruth commission vision militated against restraint as a general matter and\nthat examples such as these are less common than situations in which Starr felt\nobliged to take steps that a conventional prosecutor \u0096 one not engaged in a\ntruth-commission project \u0096 would have likely eschewed. <\/p>\n\n\n\n

Q: You\nsuggest that an Independent Counsel’s office’s staff is often inherently\npartisan, and thus that Starr should not be faulted for hiring and retaining\nJackie Bennett, for example, or other extremely anti-Clinton staff. But other Independent Counsels have\nhired across party lines, and hired outside of Washington, often from the\nSouthern District of New York. \nCan’t we assume that in choosing not to do so, Starr actually chose and\nblessed the partisan character of his office?<\/b><\/p>\n\n\n\n

A: No,\nbecause Starr, in fact, hired across party lines and hired from outside\nWashington too. Starr’s staff shifted a lot over the course of the\ninvestigation. There were some very aggressive hotheads, and there were some\nvery cautious, thoughtful prosecutors. There were more Democrats than many\npeople imagine too. Starr’s staff was actually an eclectic and interesting\nbunch.<\/p>\n\n\n\n

I don’t mean to suggest that an independent counsel’s staff\nis inherently partisan, just that circumstances will tend to push it in that\ndirection. The young lawyers who wished to spend their early careers\ninvestigating Richard Nixon tended to be liberals. In fact, there’s something\nof a tradition of having special prosecutors come from the party opposite the\npresidential subject (Walsh, a Republican, is the exception). It only stands to\nreason that, on average, people will be most likely to hire people like\nthemselves to staff their investigations.<\/p>\n\n\n\n

Q: \nIn the end, can you share with readers of this interview your bottom-line\nevaluation of Starr’s conduct in the investigation, and explain how it differs\nfrom other assessments of Starr?<\/b><\/p>\n\n\n

A: My\nbottom line is that Starr was a decent man who ran a deeply flawed\ninvestigation. Both his decency and the flaws of his approach have been widely\nmischaracterized in the existing literature. I see Starr as a well-intentioned\npublic servant \u0096 one who was not motivated by any nefarious desire to bring down\nthe Clintons and did not behave unethically \u0096 yet who fundamentally and\ntragically misunderstood his role and the function of his office. As I put it\nin the book, “There is no escaping the conclusion that Starr \u0096 his many endearing\nqualities notwithstanding \u0096 was simply the wrong man for the job he was handed.\nHis first great error was in not appreciating the mismatch between his\nbackground and skills and the job that lay ahead and rejecting the appointment\nin 1994. Having accepted the job, he made the further error of attempting to\nshape the role to conform to his own character, sensibilities, and\npreconceptions about it, rather than allowing the job to shape him. His efforts\nat reimagining the role of independent counsel were, to everyone’s\nmisfortune \u0096 including his own \u0096 dramatically effective. Starr created out of the\nindependent counsel a truth-seeking institution that Bill Clinton, with his\npathological aversion to truth, may have richly deserved. That poetic justice,\nhowever, is of small comfort. For all his honor and integrity, affability and\ndecency, Starr’s legacy is an unhappy one: the unapologetic conversion of the\nprosecutorial process into an instrument of exposure.”<\/p>\n\n<\/span>\n\n\n

\n

\n\n\n<\/a>\nJulie Hilden, the interviewer, is a FindLaw columnist,\nattorney, and freelance writer. \nHer memoir, The Bad Daughter<\/u>, was published in 1998 by Algonquin\nBooks. Her first novel is forthcoming from Plume and, in French translation,\nfrom Actes Sud. She practiced law\nfrom 1996-99 at Williams & Connolly, which represented President Clinton in\nthe impeachment, but did not work on impeachment matters there.\n

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