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A SECOND DRAFT OF HISTORY, RESULTING FROM NEW ANALYSIS AND LENGTHY INTERVIEWS WITH STARR:
A Review of Benjamin Wittes's Starr: A Reassessment


By MATTHEW HERRINGTON


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Friday, July 19, 2002

The very first item that fell in my very first inbox in Washington was a copy of the Legal Times, a newspaper for lawyers. Being young and naive, I assumed one was under a moral obligation to read what landed in one's inbox, and promptly did so. The headline above the fold has always stuck with me: "Starr: Affable, Well-Liked."

From the vantage point of the early 1990's, it was a commonplace in the legal community that Kenneth W. Starr was headed to the Supreme Court of the United States. After all, Starr had a decorated tour as a Federal Circuit Judge under his belt and an equally well-received Solicitor Generalship under way. Starr was (and he remains) affable. Starr was (and is no longer) well-liked on both sides of the aisle.

In 1990, it would have been simply inconceivable to suggest that Ken Starr would someday come to be the subject of grossly unfair caricatures that sought to distort him into the sex-crazed kingpin of a vast right-wing conspiracy, to coin a phrase. How did this happen? Washington Post reporter Benjamin Wittes, in Starr: A Reassessment, sets out to answer this question, among others.

Lengthy Interviews With Starr And An Assumption He Is A Credible Information Source

Wittes's angle on the story derives largely from the fact that Starr agreed to sit down for a long series of interviews. Starr, both by description and as evidenced by his quoted comments, was forthcoming in his sessions with Wittes.

As if bracing himself for criticism from the left, Wittes concedes almost apologetically that an assumption of his project is that Starr is a valuable source for truthful information about the very probe he oversaw. His timidity in venturing even this limited assessment - essentially that Starr "is not a liar" - shows that Starr remains a political hot potato.

Starr Believed Both Lewinsky and the Independent Counsel Statute to Be Mistakes

While generally staging a well-tempered defense of his investigation in his interviews with Wittes, Starr did make some newsworthy concessions in his interviews with Wittes. Strikingly, Starr admits, for instance, that expanding his probe to include the Lewinsky investigation was a "mistake." Perhaps even more strikingly - at least from a lawyer's point of view - Starr, as reported by Wittes, also seems to have believed the very statute that authorized his probe was also misguided.

As Wittes points out, it can only be seen as ironic that Starr himself militated against the Independent Counsel Statute when its constitutionality was in play during the 1980's. Starr decried the dangers of the Office of the Independent Counsel (OIC) scheme at that time - and did so in harsh, unequivocal language consonant with - and perhaps anticipating - the views of Justice Antonin Scalia in his dissent to the Court's decision upholding the statute, Morrison v. Olson.

Starr's (and Scalia's) Argument Against the OIC: Even More Persuasive In Retrospect

Scalia's and Starr's argument against the Independent Counsel Statute seems even more persuasive in retrospect - now that we have the Clinton impeachment, not the Nixon resignation, in mind. It basically goes as follows: Taking a little bit of prosecutorial power out of the executive branch is an extraordinarily dangerous thing. A truly independent prosecutor would be insulated from the counterweights that Department of Justice prosecutors claim regulate and limits their behavior.

These counterweights include scarce resources, and accountability to an elected branch of government. The President can fire the Attorney General (though that might be a political disaster), but cannot touch the Independent Counsel. And whereas the Attorney General must work within a set budget - sacrificing one prosecutorial priority to serve another - the Independent counsel has a single priority and target he or she can doggedly pursue, without worrying about resource limitations.

The elegance and force of this argument notwithstanding, after the Supreme Court upheld the Statute in Morrison, Starr not only accepted the job whose power he was concerned about, but tested the limits of that power. And in the end, Starr's OIC ended up empirically proving not only this architectural defect in the statute, but a second defect as well. Wittes employs a nice turn of phrase to sum up the result: "As President Grant might have predicted, Starr's execution of his duty under the statute secured its repeal."

Starr's Expansive Misinterpretation of the Statute Exacerbates Its Flaws

Interestingly, though, Wittes argues that this defect chiefly manifested itself in the Whitewater and ancillary investigations and not in the much more prominently acted out Lewinsky investigation. He points, for instance, to the following Whitewater and ancillary investigative steps that Wittes characterizes as abuses: the prolonged incarceration of Susan McDougal, the multiple indictments of Webster Hubble, the prolonged (and unsuccessful) effort to gain access to the notes of the late Vince Foster's lawyers.

Wittes's argument is that all these incidents evidence the OIC's unrelenting pursuit of its objects. The first of these- the McDougal incarceration - was markedly aggressive, especially given that McDougal was not a primary target, and the Whitewater allegations were related to the Office of the Presidency only by virtue of its occupant and were concerned with long-ago conduct in Arkansas. But of course, as Wittes concedes, there were serious allegations of criminality at issue. Would a prosecutor with more than one subject to investigate have gone to such lengths? Here Wittes is probably correct that the answer is no. The latter two incidents - the Hubble indictments and the quest for the Foster attorney-client communications - were not only aggressive but brought stinging judicial defeats and generated pronouncedly bad law for federal prosecutors.

The three pieces of evidence on which Wittes depends from the Whitewater and ancillary investigations all fit snugly into Wittes's main, and provocative, thesis: Starr the Independent Counsel indulged an expansive interpretation of the Independent Counsel statute that served to maximize the very flaws that Starr the critic had pointed to in the statute.

Did Starr Tread Upon the Legislature's Exclusive Impeachment Power?

The second defect of constitutional architecture explored by Wittes is more novel and thus more interesting. Scalia predicted very presciently in his Morrison v. Olson dissent the excessive lengths to which a single-minded Independent Counsel might travel, and many echoed his views. But the idea that, in the area of impeachment, an Independent Counsel could also invade Congress's own powers was and is less chronicled. Wittes, however, makes a strong case that this infringement, too, was a natural consequence of the Independent Counsel Statute - and again one exacerbated by Starr's interpretation of the law.

The provision of the Independent Counsel statute relating to impeachment referrals was singularly ambiguous even when compared with the balance of the statute, which is saying something. It provided that the Independent Counsel was bound to refer to Congress the "information" relating to the investigation of any crime that "may [have] constitute[d] grounds for impeachment."

What duty does this provision impose? In testimony before the Senate, in the midst of the firestorm over the referral, Starr remarked that he (and perhaps the system as a whole) would have been better served had he simply sent a truck loaded with testimony and evidence (the famous dress, for instance) up to the House, with a simple note saying make of this what you will.

This he did not do, of course. Instead, his office went much further - in convening the grand jury; putting Lewinsky and various relatives and all the other bit players in the tawdry tale before it; and presenting a Report that not only compiled facts, but also ventured to make inferences and conclusions using those facts as the basis.

Wittes makes a convincing argument that in Starr's effort to effectuate his interpretation of the statute so as to respect the words of Congress, he in fact treaded into the ground of the impeachment power proper, which is of course solely reserved to the legislature. Starr recalled to Wittes that within his office, "as the agora unfolded" the staff repeatedly asked themselves why this issue was being explored through the mechanism of grand jury testimony.

"Maddening" - But Not Venal or Mendacious - Behavior on Starr's Part

Ultimately, in describing Starr's conduct of his investigation Wittes borrows the memorable word President Clinton's counsel Gregory B. Craig used to describe his own client's behavior: "maddening." But make no mistake, Wittes has a point of view - and it is, in the end, quite generous to Starr, and far more so than most chroniclers of the impeachment have been.

In evaluating Starr, Wittes repeatedly emphasizes that Starr's maddening behavior was not a creature born of venality and mendacity, but one born of the frustration of a search for truth thwarted at every turn - indeed his behavior was born of what Wittes terms the "consistently venal" conduct of the subject of his investigation. Wittes's conclusion, thus, is that Starr acted in good faith, but under a dangerous misconception of what his role was.

Robert Ray, upon taking over the office from Starr, remarked that his job was to investigate violations of the criminal code of the United States. Starr's conception of the office appears to have been broader - trending towards what Wittes calls a "truth commission" vision of his charge. Starr, for his part, rightly makes no apologies for pursuing the truth in the face of a pattern of behavior that, whether criminal or not, was locked in battle with the truth.

Beyond Partisanship: An Account That Offers Close Analysis and Legal Critiques

For all of us who are his contemporaries, Ken Starr is ultimately like okra, or maybe like Tom Daschle. If you like him, you like him; if you don't, there is probably nothing that could be done or said that will change your mind.

Partly for this reason, it is - as Wittes well recognizes - probably too soon for the sober reassessment of Starr's tenure that he attempts to find any acceptance. This is a book, however, that in the fullness of time should be seen to be an able second draft of history.

Wittes has a clear thesis, persuasively argued. His book at least takes a stab at transcending partisanship to engage questions of good and bad faith, right and wrong legal interpretations, and desirable and undesirable ways to check abuses of power. It thus rises to a higher level than most of the prior literature, which tends to vacillate wildly between encomiums to Starr and character assassinations of him. Wittes should be praised for avoiding both extremes. My bet is he will not be.


Matthew Herrington practices law in Washington, D.C. Herrington was never involved in the representation of President Clinton, nor with any Office of Independent Counsel. His email address is mherrington@wc.com.

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