Friday, Jul. 18, 2002

Benjamin Wittes, i>Starr: A Reassessment (Yale University Press, 2002)

Benjamin Wittes is an editorial page writer for The Washington Post, in which capacity he writes editorials on the law and other topics. Accordingly, Wittes watched the Clinton impeachment proceedings play out from the ideal vantage point the Post provided. Now Wittes has taken a longer view on the controversy, and in particular on Independent Counsel Kenneth Starr's role in it, with his fascinating, contrarian new book, Starr: A Reassessment (Yale Univ. Press 2002).

Taking aim at many of the existing works on the controversy, from Jeffrey Toobin's A Vast Conspiracy, to Joe Conason and Gene Lyons's The Hunting of the President, Wittes is intent on getting beyond the "angry denunciations" of Starr to the heart of the matter. Rather than submitting a polemic, Wittes – having been granted access to interview Starr for ten hours about the course of the investigation – offers instead an analytical, scholarly work of "unapologetic revisionism that examines his investigation through the particular lens of his understanding and interpretation of his role under the independent counsel statute."

As Wittes explains in the Preface to his work, "My argument is that Starr's great error was not one of malicious motive or evil tactics, but, rather, that he fundamentally misconceived his role, taking a statute designed to authorize a conventional criminal investigation and finding in it license to conduct the broadest of inquiries, an investigation that he never intended to use chiefly as a vehicle for punishing crimes. Starr saw the independent counsel's office as a kind of truth commission – a conception of the role that, while adopted in good faith, was entirely wrongheaded."

This argument – at odds with most portrayals of Starr, whether by Republicans, as a hero, or by Democrats as the Devil – has caused its own share of controversy. FindLaw columnist Julie Hilden (who knows Wittes socially) interviewed Wittes, via written questions, regarding the book's arguments and his experience writing it. The text of the interview follows:

Q: What inspired you to write the book? Was it dissatisfaction with the existing portrayals of Starr, and the scandal? How do you see your book as different from the existing works on these topics? What was your aim in writing the book?

A: It sounds a little churlish to say that the book was motivated by dissatisfaction with the existing literature. That said, it was definitely part of the impetus. Having watched the investigation throughout the Monica Lewinsky saga, I was filled with questions by the time Starr stepped down: What had motivated his more controversial decisions? Was the direction the investigation took in 1998 chiefly a function of the independent counsel law itself or was it a function of Starr's behavior? If the latter, should we regard Starr's behavior as reasonable or as excessive?

The extant literature, and many of the books that followed Starr's resignation, either presumed the answers to these questions or simply attempted to tell the story of the investigation without analyzing it at all. The result was that the story itself became exceptionally well developed in the literature. Our analytical understanding of what happened, however, was far less developed than the factual understanding.

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

Q: One of your main claims is that Starr had a good-faith misinterpretation of the Independent Counsel statute – in Starr's view, you contend, the statute both set up a sort of "truth commission," and prevented Starr from narrowing its scope. You also note that Starr "always hated the statute and saw it as a dangerous affront to the separation of powers."

Yet if that is true, why couldn't he simply have declined a job in which he didn't believe in the first place? He had the power to say no – as he did to the tobacco companies he also represented. His position sounds to me too much like a Nuremberg defense: I was only taking orders from the statute.

If the statute, Starr believed, created a wide-ranging truth commission, and a truth commission is antithetical to our democracy, as he also seemed to believe (if he concurred with Scalia's Morrison v. Olson dissent), why in the world did he volunteer to enforce this unconstitutional and undemocratic, in his view, statute? Can't an Independent Counsel also make an independent constitutional judgment?

And what about the numerous people who tried to correct Starr's misinterpretation of the statute during the investigation? After a while, doesn't his clinging to it actually become an act of bad faith, or at least a very bad choice once it is clear that other interpretations are possible?

A: There are several points here. First, you ask why Starr took a job under a statute which he had always hated. I probed him on this a lot, and I find his answer persuasive. Starr regarded Morrison v. Olson as having settled the question of the statute's constitutionality. The opinion was a 7-to-1 decision, and it was written by the Chief Justice, so it clearly spoke authoritatively for the court. Following the opinion, Congress reenacted the statute in 1994, so the legislative branch regarded it as sound policy, and the statute had been invoked by the attorney general in Whitewater. The fact that Starr personally disagreed with both the policy and constitutional judgments at issue was no longer the extant point for him.

Rather, the question for Starr was whether, given these judgments by the responsible branches, he was an appropriate person to serve as an independent counsel. He determined that he was. This latter judgment – given his lack of prosecutorial experience – seems to me far more questionable than the decision, given his distaste for the law, to serve under it. I for example, oppose the death penalty, yet I would not hesitate to serve on a death penalty jury; if everyone with my sensibilities, after all, declined service, death penalty juries would be populated entirely by people inadequately skeptical of the policy and its dangers. By the same token, if everyone with principled questions about the independent counsel statute declined service under it, the universe of possible independent counsels would be limited to those who lacked skepticism of it or sensitivity to its potential dangers. Starr, it is worth noting, is not the only skeptic of the statute to have served as an independent counsel.

That said, I think your Nuremberg defense point, though ungenerously worded, raises an important dimension of Starr's relationship with the statute. For Starr did not merely agree to serve under the statute. He took a law to whose dangers he had been perceptively attuned early on and proceeded to adopt a reading of that law that maximized, rather than minimized, those dangers. This seems, as I put it in the book, positively passive-aggressive. And he does have a tendency to fall back on a argument that sounds a great deal like "the statute made me do it." In my judgment, this argument simply cannot bear the weight he puts upon it.

Why he did this remains, in my view, a great mystery, and those disinclined to believe him are free to believe that bad faith provides the simplest answer. I believe this judgment is a mistake, however. My principle reason for rejecting it is an admittedly intangible one: Starr is passionate about his view of the law, and he defends it with what, to my mind, seems like obviously sincerity. He articulated what I term the truth-commission vision of the law internally within the office early on in the investigation, and clung to it over the arguments of some of his staff throughout the probe. While some people within the office disagreed with him on the merits of the vision, I have never spoken to anyone who knows Starr who believed for a minute that his view was anything other than the real thing. As Paul Rosenzweig, one of Starr's prosecutors, recently wrote in Legal Times: "From my very first day in the office, I was aware of the two diverging possible interpretations – both the Wittes position that the independent counsel, in effect, stands in no different relationship to a criminal investigation than the attorney general, and the interpretation Judge Starr eventually adopted, that the act imposes on the independent counsel a greater investigative obligation. The issue was widely discussed within the organization and Judge Starr's resolution of the question was well-known to all of us in the office, long before the Lewinsky matter began."

I understand that Starr's more vociferous critics will not be persuaded that his view of the statute was adopted in good faith on the testimony of his close aides. I, however, see no reason to doubt either him or those, like Rosenzweig, who back him up.

In answer to your final question, adopting the truth-commission vision was very clearly a bad choice. As I describe at length in the book, the vision is difficult to reconcile with the text, purpose, or history of the independent counsel law, and it dramatically augments the problems inherent in the statute. Starr's vision of his role, at key points in the investigation, pushed him in exactly the wrong direction: towards ever-mounting confrontation with the rest of the executive branch. Where a normal prosecutor, one interested chiefly in bringing actual criminal cases, might have let matters rest, Starr – devoted to developing and reporting the whole story – felt obligated to keep matters open, pursue additional leads, and take other investigative steps in order to get at some larger truth. Importantly, Starr justifies many of his key decisions in terms of the need to get the truth. This attitude greatly lengthened the investigation and prompted many of the steps for which Starr is commonly accused of excess. To the extent that some of this was avoidable, it seems to me clearly a bad choice not to have stuck more narrowly to the prosecutorial questions the case posed.

Q: What do you think of Janet Reno's interpretation of the Justice Department's role under the statute? She made referrals 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 was out of bounds in his investigation, was a reasonable response on her part to withhold future referrals once she had learned the havoc they could bring?

A: I'm quite soft on Reno's handling of the independent counsel law, which put her in an absolutely impossible position. She began the administration as a believer in the law, a position she lived to regret and reverse. Where she triggered the statute – as in Whitewater, and cases such as that of Mike Espy and Henry Cisneros – she created institutions that caused no ends of problems for the executive branch, herself included. So as the administration went on, she became more reticent, and declined to invoke the statute in matters involving campaign finance. This shift, in turn, generated allegations that she was shilling for the White House. It was a no-win situation, and I think her behavior was actually quite reasonable.

Her specific relation with Starr's shop is a complicated story. Through most of the investigation, the Justice Department had no serious problems with Starr. Rather, in contrast to their relations with the independent counsels in the Cisneros and Espy cases, department officials got along well with the Starr operation and felt reasonably comfortable making additional referrals to it. So when the Travel Office and FBI files matters arose in 1996, sending these over to Starr, rather than creating a new office, seemed like the logical step for all concerned. Even when Linda Tripp showed up on the scene, as late as January 1998, relations were good enough that the department did not seriously consider either having a different independent counsel examine the Lewinsky matter or investigating it in-house. The relationship between Justice and Starr only deteriorated later, as the Lewinsky investigation heated up. Starr was irate that Reno failed to defend him against White House attacks, and the Justice Department was deeply irritated by Starr's efforts to secure testimony from Secret Service agents. But it is worth remembering that, for most of Starr's operation, there was a fair degree of comity between the Starr shop and the Justice Department. This comity, it seems to me, generally explains Reno's willingness to make additional referrals that seem, in retrospect, hard to understand.

Q: Even if Starr stuck to his interpretation of the statute, shouldn't he also have construed it to have some constitutional limits, especially where Lewinsky's sexual privacy was concerned? The report he submitted seemed to be, at a minimum, an assault on her. Shouldn't he be faulted for its lascivious detail?

A: I honestly don't know how he could have imposed meaningful limits on the investigation after he had adopted the truth commission interpretation – which seems to me an excellent argument against the underlying truth commission vision itself. The proper course from the outset, it seems to me, would have been to stick narrowly to the criminal questions the Lewinsky case presented. Starr should have gotten her testimony quickly, secured Clinton's version of events, and done whatever ancillary investigation he needed to do in order to make his charging decisions. Had he proceeded this way, he would have undoubtedly been obliged to make a referral to Congress, but he need not have filed a narrative document, nor need he have waited until many months after the matter broke to shift the action to Congress, which – unlike the independent prosecutor – is politically accountable for the questions it asks and for the attention it devotes institutionally to matters that invade the sexual privacy of young women. The truth commission vision, for reasons I explain at length in the book, precluded this approach and made Starr into the impeachment investigator for a Congress uneager to take on a delicate and politically unpopular subject. But it seems to me that the Rubicon was crossed once Starr agreed to play this role. The role of truth commissioner is very hard to limit once it has been adopted. The answer, it seems to me, is for prosecutors to remember the purpose of a grand jury investigation – which is a punitive, not an expository function – and to hew carefully and rigorously to that. If Congress wants separately to use its committees to expose the truth or to authorize a special commission to do so – like, for example, the Warren Commission – that is a different job description for a different actor. But it is folly to accept a truth-commission role for a prosecutor and then try to limit the privacy invasion that will ensue.

Q: While you note that Congress leaked the Independent Counsel's report and its sheaves of salacious details without Starr's express approval, wasn't it inevitable, in that political climate, that it would indeed be leaked – and isn't that leak then chargeable to Starr because it was foreseeable by him?

A: First of all, "leak" is the wrong term for what Congress did. It passed a resolution formally releasing that material. There was nothing surreptitious about it. It seems almost unbelievable that Starr did not anticipate the release, but I am fairly convinced that he actually did not expect it. Rather, he seems to have issued the referral for Congress' eyes and assumed members would act judiciously. This seems crazy in retrospect, and I think Starr can be reasonably faulted both for the text of the referral itself (which was wildly excessive) and for not foreseeing that it would inevitably – by leak or by formal disclosure – be released. That said, Starr's judgment was at least a little less crazy from his vantage point, acting in real time. After all, Leon Jaworski's Watergate referral has, to this day, never become public. (This, incidentally, is a scandal in its own right; at some point, grand jury secrecy ought to lapse, and the historical interest in a document of that type ought to prompt its public disclosure.) So there was something of a history of grand jury referrals being sent to Congress with an expectation that they would serve congressional impeachment, but not public, purposes. The difference, of course, was that in Watergate, Congress was conducting its own investigation. Here, by contrast, Congress was deferring to Starr, waiting for him to deliver the story. Once he did, Congress did not mean to use his work merely to supplement its own investigation; Congress did not wish to conduct its own investigation of an embarrassing subject at all. So members simply relied on the facts as Starr had gathered them. His, in other words, was the only investigation. The fact that Congress was using him to conduct its constitutional function – which would have greatly troubled a more politically adept actor than Starr – necessitated the release of his work.

Q: You assert that there were times when Starr refrained from acting to the full extent of his power. But there were many other examples where he taxed it, and drew criticism from seasoned prosecutors – the subpoenas for Lewinsky's bookstore and psychiatric records, putting Sidney Blumenthal before the grand jury, the treatment of Lewinsky in the Pentagon City mall, and calling her mother to testify before the grand jury, are only a few examples.

Meanwhile, the only instances of restraint you cite are his declining to indict the President or First Lady, and declining to submit a Whitewater impeachment referral. But the indictments would have been historic rarities – and there is serious controversy as to whether a sitting President can be indicted – and the ultimate report on Whitewater suggested Starr didn't have the goods.

So where is the restraint? Isn't it fair to say that, in fact, Starr never refrained?

A: No. There are numerous instances in which Starr could have taken still more aggressive steps and declined. The office seriously considered indicting several White House staffers for lying in connection with the Travel Office investigation, for example, but did not do so. It could have retried Julie Hiatt Steele and Susan McDougal in cases in which juries hung. There were even times where Starr, in my view, was insufficiently aggressive. He spent many months requesting Bill Clinton's voluntary testimony before the grand jury before forcing the president's hand with a subpoena. I would not have been so deferential, certainly not in the context of the attacks the White House was, at that time, conducting against Starr. Clinton's testimony – like Lewinsky's – should have been secured immediately, by subpoena if necessary.

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

Q: You suggest that an Independent Counsel's office's staff is often inherently partisan, and thus that Starr should not be faulted for hiring and retaining Jackie Bennett, for example, or other extremely anti-Clinton staff. But other Independent Counsels have hired across party lines, and hired outside of Washington, often from the Southern District of New York. Can't we assume that in choosing not to do so, Starr actually chose and blessed the partisan character of his office?

A: No, because Starr, in fact, hired across party lines and hired from outside Washington too. Starr's staff shifted a lot over the course of the investigation. There were some very aggressive hotheads, and there were some very cautious, thoughtful prosecutors. There were more Democrats than many people imagine too. Starr's staff was actually an eclectic and interesting bunch.

I don't mean to suggest that an independent counsel's staff is inherently partisan, just that circumstances will tend to push it in that direction. The young lawyers who wished to spend their early careers investigating Richard Nixon tended to be liberals. In fact, there's something of a tradition of having special prosecutors come from the party opposite the presidential subject (Walsh, a Republican, is the exception). It only stands to reason that, on average, people will be most likely to hire people like themselves to staff their investigations.

Q: In the end, can you share with readers of this interview your bottom-line evaluation of Starr's conduct in the investigation, and explain how it differs from other assessments of Starr?

A: My bottom line is that Starr was a decent man who ran a deeply flawed investigation. Both his decency and the flaws of his approach have been widely mischaracterized in the existing literature. I see Starr as a well-intentioned public servant – one who was not motivated by any nefarious desire to bring down the Clintons and did not behave unethically – yet who fundamentally and tragically misunderstood his role and the function of his office. As I put it in the book, "There is no escaping the conclusion that Starr – his many endearing qualities notwithstanding – was simply the wrong man for the job he was handed. His first great error was in not appreciating the mismatch between his background and skills and the job that lay ahead and rejecting the appointment in 1994. Having accepted the job, he made the further error of attempting to shape the role to conform to his own character, sensibilities, and preconceptions about it, rather than allowing the job to shape him. His efforts at reimagining the role of independent counsel were, to everyone's misfortune – including his own – dramatically effective. Starr created out of the independent counsel a truth-seeking institution that Bill Clinton, with his pathological aversion to truth, may have richly deserved. That poetic justice, however, is of small comfort. For all his honor and integrity, affability and decency, Starr's legacy is an unhappy one: the unapologetic conversion of the prosecutorial process into an instrument of exposure."

Julie Hilden, the interviewer, is a FindLaw columnist, attorney, and freelance writer. Her memoir, The Bad Daughter, was published in 1998 by Algonquin Books. Her first novel is forthcoming from Plume and, in French translation, from Actes Sud. She practiced law from 1996-99 at Williams & Connolly, which represented President Clinton in the impeachment, but did not work on impeachment matters there.

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