Bum Rap By Christopher Hawthorne
Shoddy Construction By Benjamin Wittes
Kenneth Starr Responds By Kenneth Starr
Chains of Command By Beth Hillman
Silence! By David Luban
No Exceptions? By Michael Ignatieff
Kenneth Starr Responds
On June 30, 1994, two seemingly unconnected but closely related events occurred. First, President Bill Clinton, after considerable debate and rancor both in Congress and within his Administration, signed into law the reauthorization of the controversial independent-counsel provisions of the Ethics in Government Act of 1978. Second, on the same date, then-Independent Counsel Robert B. Fiske Jr. filed an interim report on the death of Vincent Foster, the highest-ranking executive branch official to take his own life while in office since the suicide of cabinet member James Forrestal during the Truman Administration.
The coincidence of these two apparently independent events illuminates the uniqueness of the Whitewater investigation. In contrast to each previous independent-counsel investigation, Whitewater represented the confluence of two particular strands of prosecutorial activitythe work of a federal prosecutor appointed by the Attorney General and of my office, established in August 1994, by the special three-judge panel of the D.C. Circuit. That renders Whitewater a singular experience under the now-moribund independent-counsel provisions, one that for sound public policy reasons will likely never be repeated. Whitewater grew not only out of these provisions, but out of Fiske's responsible work as a prosecutordeveloping leads, working with witnesses, and following the logic of the unfolding investigation. That logic led quickly to a multibranch inquiry in Arkansas that yielded up, in the fullness of time, evidence of serious criminal wrongdoing, including criminal convictions of a sitting governor and the then-recent Associate Attorney General of the United States.
What appeared on the surface to beand largely remained in the public minda limited, focused investigation into one "failed land deal" was in fact a far-flung inquiry into various possible criminal activities in Arkansas and beyond. The matters under investigation when Congress reauthorized the statuteover vehement objections grounded in both constitutional concerns and public policywent far beyond the relationship of Madison Guaranty Savings and Loan in Little Rock to the Whitewater Development Corporation. The full range of activity was barely understood outside the investigation, other than by the defense counsel and those following daily developments in and around the United States Courthouse in Little Rock. The issues under active scrutiny when I took over the investigation included Webster Hubbell's activities as a senior partner of the Rose Law Firm in Little Rock; large cash withdrawals from a rural Arkansas bank during the state's 1990 gubernatorial race; Arkansavernor Jim Guy Tucker's cable television business; and the possibly fraudulent bankruptcy of a Whitewater real estate brokes Governor Jim Guy Tucker's cable television business; and the possibly fraudulent bankruptcy of a Whitewater real estate broker.
Not only that, a growing Washington phase of the investigation had unfolded in the wake of Attorney General Janet Reno's appointment of Robert Fiske. Following his appointment in January 1994, Reno authorized Fiske to set up shop independently not only in Little Rock but also in a separate office near the Justice Department in Washington. The mission of the Washington office was principally to focus on the death of Foster, who had served as Deputy Counsel to the President and as a close adviser and confidant of the President and the First Lady.
The Whitewater investigation was metparticularly in Arkansaswith determined resistance. The hostility voiced in that state did not spread nationwide, but politicians and others involved in public life in Washington and Little Rock condemned investigators and, more relevantly, made systematic legal objections to their work. Take the Perry County Bank investigation, for example. The bank's co-owners insisted that my office lacked the authority to investigate possible violations of federal laws at their institutioneven though the investigation had begun under Fiske and was expressly authorized by the provision of the independent-counsel statute calling for investigation of "related" matters. Month after month was devoted to litigating the general issue of authority, with courts in both the District of Columbia and St. Louis consistently holding that the investigation was entirely proper, as the statute made clear. The bank owners were eventually held in contempt of court for stonewalling against the investigation and made to pay substantial fines. But time was lost on this preliminary skirmishing.
Benjamin Wittes, a fair-minded critic, sees all this. He and I disagree, then, not about Whitewater's uniqueness, or about the inclusion of "related" matters as authorized by the attorney general, or about decisions to "expand" the scope of investigationincluding the wildly provocative phase of the investigation involving Monica Lewinsky, which, again, was authorized by the Attorney General and the three-judge panel.
Our fundamental division of opinion is about how to read the statute itself. What kind of prosecutor did the statute envisionanother federal prosecutor acting like a United States attorney, with a limited, focused mission, or a different kind of prosecutor who was also responsible for assuring the public that he had done his work in a professional manner, without fear or favor?
This disagreement is deeply ironic for me because I ardently opposed the statute on both policy and constitutional grounds when it came up for reauthorization in the 1980s. The Justice Department where I then served took the strong, well-researched position that the independent-counsel statute embodied both bad public policy and serious constitutional flaws. Congress determined otherwise, and in 1983 the law was reauthorized for another five-year term. Congress extended the statute twice more in 1987 and 1994, modifying it here and there, and, again, brushing aside objections made by the Justice Department during the first Bush Administration. Eventually, the Supreme Court, unwisely I believe, sustained the statute's constitutionality by a vote of seven to one in the case of Morrison v. Olson. The Court entrusted to the political process the task of assuring the public that investigations into alleged executive wrongdoing were being conducted appropriately and thoroughly.
Pivotally for the basic difference of opinion between Benjamin Wittes and me, each time Congress reauthorized the independent-counsel statute it saw fit to define an extraordinary role for each counsel as a provider of information to the public. Congress, then, gave the independent counsel a dual function. In investigating and prosecuting, on the one hand, the independent counsel was to follow Justice Department policy and proceduresa requirement that I warmly welcomed and that would have been embraced by any reasonable person in my job. On the other hand, the independent counsel was fettered with the separate responsibility of reporting comprehensively on the work of his office.
No other federal prosecutor is required to report on a specific investigation. The statutory reporting requirement is far removed from the "quick look" that a federal prosecutor vested with wide-ranging responsibilities to enforce federal laws appropriately gives any particular case, even a case about public integrity. An ordinary prosecutor may reasonably determine that other more pressing matters, like national security or counterterrorism, are more worthy of the limited time and resources his office has to allocate. For that matter, Congress has never imposed budgetary limitations on the independent counselinstead, objections about the length and expense of investigations have been largely reduced to partisan, inconsequential bickering.
The very uniqueness of the reporting provision bespeaks a Congressional seriousness of purpose. That was tested in the '80s when an independent counsel declined to bring charges, but issued a report suggesting that the subject of an investigation might have committed federal crimes. Out of concern that individual reputations were being besmirched, Congress was moved to alter the reporting requirement so that uncharged allegations of criminal conduct could not be leveled. But Congress did not remove the requirement from the law.
The salient point for understanding the statute, then, is thateven after a report that troubled many membersCongress continued to require a full accounting of the independent counsel's work. The strong message was that the reasonable independent counsel should be thorough and comprehensive. From the earliest submissions of independent counsels to the final ones of the current Whitewater independent counsel, Robert W. Ray, reports that have been made public have consistently met those standards. They have told a story thoroughly. They have set forth historical facts in narratives rather than presenting reasons to prosecute or not prosecute in short, simple memos.
That message of thoroughness and comprehensiveness was especially pointed in the context of Whitewater. The initial Fiske report on Foster's death was subjected to a fusillade of criticism for being at best incomplete. Dark suggestions of Oliver Stone-like conspiracies also abounded. This, I concluded with my staff, would not do in a free and open society. In the wake of the Fiske report, concern ran deep among the staff about our responsibility to staunch the paranoid flow. Public trust in the fundamental decency and honor of the country's highest officials could not brook the suggestion that foul play was connected to the death of a confidant of the President and the First Lady. There could be no substitute, this time, for both the appearance and the reality of thoroughness as well as care in a pain-staking review of the facts.
The fault lines that divide Benjamin Wittes and me, then, are the singular context of the Whitewater investigation and the purpose of Congress that underlies the indepedent counsel statute.