Posted: October 8, 2004
enjamin Wittes, an editorial writer for the Washington Post, attempts in this book an "impartial" examination of Kenneth Starr's term as Independent Counsel. To his credit, Wittes actually spent ten hours interviewing his subject. Despite this outreach, or perhaps because of it, Starr: A Reassessment disappoints. Although Wittes claims to be taking a fresh look, he repeats many of the same complaints hurled by the most ax-grinding critics.
In Wittes' view, Starr was neither a partisan hack (as the Democrats contended) nor a "martyr." He was simply the wrong man for the job. From the very beginning, Starr's personality, lack of prosecutorial experience, and misguided interpretation of the independent counsel statute—together with defects in the statute itself—doomed his investigation.
Wittes has difficulty discerning the difference between criticizing the independent counsel law and enforcing it. Of course, Starr, like most conservatives, had repeatedly objected that the statute violates the separation of powers doctrine and should have been held unconstitutional by the U.S. Supreme Court. Yet in his role as Independent Counsel, Starr was duty-bound to follow it.
So how did Starr view his enforcement responsibilities? Curiously, Wittes cites former Iran-Contra Independent Counsel Lawrence Walsh's—the most offensive of all such prosecutors—judgment that Starr "misconstrued his role as a search for truth, rather than an enforcer of justice." Wittes comments:
Critics have long accused [Starr] of behaving like a kind of minister of truth. Starr, it turned out, did not really dispute this description. He contended, rather, that it encapsulated the true nature of the office Congress created.... Despite Starr's strenuous—and I believe sincere—efforts to frame his vision as a disinterested reading of congressional will, his reading was rooted instead in the character of a man profoundly offended by lies and in whose pantheon of social goods, truth seems to loom larger even than justice. It was an understanding that recast the law—and the prosecutorial process along with it—in his own image.
This is a strange parsing of a prosecutor's responsibilities. Whether enforcing the independent counsel law or any law, it is difficult to imagine a circumstance in which a prosecutor can pursue justice without first determining the truth. Isn't that the purpose of an investigation? After all, a prosecutor represents the state, and if he is not dogged in his search for the truth, then he is a rogue.
Wittes all but ignores the most important decision any prosecutor makes in his pursuit of justice: whether or not to indict the target of his investigation. He makes only passing reference to Starr's conclusion that the Constitution does not confer immunity from prosecution on a sitting president. This is a huge (and accurate) decision. If Starr had concluded otherwise, the independent counsel law, as applied to sitting presidents, would be without criminal remedies. And the pursuit of justice, which Wittes describes as the purpose of such an investigation, would necessarily be impeded. A prosecutor cannot seek justice if he is unable to bring charges against a person he believes to be guilty of a crime.
Yet if Starr had, in fact, secured an indictment against Clinton, one can only imagine the vilification that would have followed—from, among others, Wittes and his editorial page.
Invoking legislative history and statutory construction Wittes argues that Congress had placed limits on independent counsels, which Starr's truth-finding approach skirted. But these limits were illusory. The very purpose of the office was to ensure its independence from executive branch and congressional influence. Starr's expanded jurisdiction was appropriate under the statute and, in fact, authorized by the Special Division of the Circuit Court. And Starr's investigative techniques were also subject to judicial review, and upheld in the vast majority of cases when challenged by targets of his probe and by defendants. Of course, President Clinton went to extraordinary lengths to obstruct Starr's truth-seeking. He asserted attorney-client privilege and executive privilege, and concocted "secret service protective function" privilege, in an effort to prevent Starr from learning the truth. But at every turn, the courts sided with Starr.
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All criticism of Ken Starr eventually comes down to his handling of the Monica Lewinsky affair. Wittes has nothing new to say on the subject, accusing Starr of wandering far away from his original jurisdiction. Wittes does not even acknowledge that, but for Clinton's grand jury testimony and its public release, his multiple offenses—including lying under oath before a federal judge during a sworn deposition in a civil case—would never have come to light. Clinton's supporters would have preferred such a result, but this doesn't diminish the seriousness of Clinton's misconduct.
Starr's judgment was vindicated when, on April 12, 1999, Federal District Judge Susan Webber Wright issued her opinion holding Clinton in civil contempt. She wrote:
Simply put, the President's deposition testimony [in the Paula Jones lawsuit] regarding whether he had ever been alone with Ms. Lewinsky was intentionally false, and his statements regarding whether he had ever engaged in sexual relations with Ms. Lewinsky likewise were intentionally false, notwithstanding tortured definitions and interpretations of the term "sexual relations."
In fact, a key reason Judge Wright gave for not initiating criminal contempt proceedings against Clinton was that "much of the President's conduct has been or is being investigated by [the Office of the Independent Counsel], and in order to prevent any potential double jeopardy issues from arising...this Court will forego proceeding under [the rules for criminal contempt]...."
Similarly, Wittes criticizes Starr's prosecution of Webster Hubbell and Susan McDougal as over the top. Wittes could not be more wrong. Hubbell, who had agreed to assist the investigation in exchange for more favorable treatment, burned Starr. In a famous jailhouse telephone call to his wife in 1996, Hubbell said: "So I need to roll over one more time." His words clearly suggested that he had been informed to withhold information about Hillary Clinton.
McDougal had originally offered to provide the Independent Counsel's Office with information about Whitewater (and Madison Guaranty Savings & Loan) in exchange for immunity. Her offer was rejected, and she was successfully prosecuted. Thereafter, McDougal was offered immunity to testify before a grand jury. She refused to answer any questions. Judge Wright held her in civil contempt and later criminal contempt.
At the time, there was speculation from us right-wingers that McDougal expected to receive a pardon from Clinton. What nonsense, replied the president's defenders. On the morning of January 20, 2001, with two hours remaining in his term, Clinton pardoned her.
Wittes points to the short-lived tenure of the first Whitewater Independent Counsel, Robert Fiske, as a shining example of appropriate prosecutorial conduct. He contends Fiske would not have journeyed into areas far outside his original mandate. What Wittes fails to acknowledge is that Attorney General Janet Reno was more than happy to increase Starr's portfolio rather than seek additional independent counsel to investigate matters like the White House Travel Office scandal. Having expanded his jurisdiction, Starr's opponents then criticized him for the length and expense of his numerous investigations.
Starr himself acknowledges that he may have made mistakes as Independent Counsel, but these pale beside the dishonorable stratagems of his enemies and the fecklessness of many of his friends. Unfortunately, you won't learn much about any of these matters from this book, which is a disappointing reminder of a disappointing time.