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May|June 2002
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

Shoddy Construction

Kenneth Starr led a wrongheaded investigation with historic costs because he misunderstood the independent-counsel law. Plus: Starr responds

By Benjamin Wittes

There are two primary views of former Independent Counsel Kenneth W. Starr tied to his long investigation of President Bill Clinton, to the impeachment of Clinton by the House of Representatives, and to the trial in the U.S. Senate. The dominant view is that Clinton's opponents—Starr chief among them—scorned the Constitution by using the American legal system as a weapon against the President. Meanwhile, Starr's generally conservative defenders regard him as the man who finally insisted on a limit to Clinton's abuses of law and morality. Both of these characterizations are gravely flawed.

In truth, Starr's investigation contained a mixture of laudable and dangerous traits that cannot be distilled easily into one archetype. To demonize Starr is to ignore the fact that explanations for all of his actions are readily available, and that his earnest sincerity makes the familiar accusation of improper motives doubtful. Yet to excuse him entirely on these grounds is to ignore, or rationalize, the genuinely terrifying qualities of his investigation: its boundlessness and lack of perspective, its seeming removal from the normal standards of federal prosecutors.

How could an ethical lawyer with good intentions have produced such a terrifying probe? My answer, based on ten hours of interviews with Starr in the 14 months that followed his resignation as independent counsel, is that he made a huge conceptual error in reading the law under which he served. The problems with his investigation were the product not of any ill motivation or misconduct, but of an interpretation of the independent-counsel statute that was at odds with Congress's reasons for enacting it. In essence, Starr fundamentally misunderstood his role as independent counsel.

The consequences of this misunderstanding are historic. Few members of the public understood even the questions at issue in Whitewater, much less how the Whitewater debacle intersected with Madison Guaranty Savings and Loan, the Castle Grande real estate deal, the death of White House lawyer Vincent Foster, and—more tenuously—with the White House travel office and the FBI files affair. Especially before the Monica Lewinsky scandal erupted in 1998, the incidents that gave rise to Starr's investigation tended to fascinate the press and Washington's political culture far more than they did the public at large. But through Starr's grandiose understanding of his purpose as independent counsel—and the unusually wide-ranging and aggressive investigation that flowed out of that understanding—Starr helped guarantee that these scandals would engulf the Clinton presidency. He also helped ensure the demise of the independent-counsel law itself.

Starr's past does not predict the role he would come to play. He had clerked for Chief Justice Warren Burger of the Supreme Court, and returned to Washington at the beginning of the Reagan administration at the age of 34 as a top aide to then-Attorney General William French Smith. Among the young conservative lawyers at the time, rehabilitating traditional executive powers was a vital cause, as vital as outlawing abortion or bringing prayer back to public schools. Watergate and Vietnam had spurred Congress to try to rein in the imperial presidency, and the result had been the rise of increasingly forceful Congressional oversight, extensive executive-branch reporting requirements, and a series of laws—the War Powers Resolution, for example—that directly insinuated Congress into executive decision-making.

Conservatives like Starr bristled at such intrusions, of which the independent-counsel law—passed in 1978—was an especially offensive example. The act grew out of the so-called Saturday Night Massacre—Richard Nixon's October 1973 firing of Watergate special prosecutor Archibald Cox—and the consequent fear that the executive branch would be able to control or stymie investigations of high-level officials. The purpose of the special-prosecutor law was to guarantee that prosecutors would be appointed to investigate serious allegations of executive-branch wrongdoing and that, once appointed, they could proceed unencumbered. The law created a prosecutor who did not answer to the rest of the executive-branch hierarchy and who could not be dismissed at the whim of the president. But by giving judges the authority to appoint prosecutors, conservatives argued, it deprived the president—through the attorney general—of power over a crucial function of the executive branch: the investigation and prosecution of crimes.

Starr's personal involvement with the statute began when it came up for renewal early in the Reagan Administration, and he helped formulate the Administration's opposition to its reauthorization. Starr's objections to the statute were, as he put it to me, grounded in a "formalistic approach" to the separation of powers.

But observing the conduct of independent counsels whom the law had spawned in that period magnified Starr's distrust of the statute. In our conversations, Starr carefully avoided criticizing Iran-Contra prosecutor Lawrence Walsh, on whom he said he had trouble passing judgment although he did not say why. Starr displayed no such courtesy, however, toward Whitney North Seymour Jr., the independent counsel who prosecuted Reagan White House aide Michael Deaver on perjury charges and provoked an international incident by trying to compel the testimony of Canadian ambassador Allan Gotlieb at Deaver's trial. Starr described this incident as the "monomaniacal pursuit of prosecutorial goals at the expense of other important goals," like those of foreign policy and diplomacy. Watching the way the statute worked in practice convinced Starr that his approach toward the separation of powers had been right—that flawed legal structures had yielded bad results.

In 1994, after serving as a judge on the U.S. Court of Appeals in Washington, D.C., and as Solicitor General for the first Bush Administration, Starr took over the Whitewater investigation at the age of 48. Starr's appointment followed the sudden dismissal of the first Whitewater special prosecutor, Robert B. Fiske Jr., who had been named by then-Attorney General Janet Reno during a brief period in which the independent-counsel law had lapsed. When Congress renewed the law, the three-judge panel (called the Special Division) charged with naming independent counsels, and ostensibly with overseeing their investigations, balked at renewing Fiske's mandate. The judges did so, they said, because the purpose of the act was to save the prosecutor from the taint of the attorney general's sponsorship.

They chose Starr instead. Starr's goal was to avoid the errors of previous independent counsels by keeping his probe under control. In contrast to Seymour and his type of independent counsel, who he believed had gone astray by focusing too narrowly on the specific needs of their own investigations at the expense of other important government interests, Starr would hire staff with the depth of experience required for him to create a "microcosm of the Justice Department."

Creating and maintaining a true micrcosm of the Justice Department is probably impossible, since the department's multilayered review process is difficult to reproduce in what is necessarily a small office. But Starr's vision, even if it had been possible, was still woefully incomplete given how dangerous he believed the independent-counsel law to be. As Starr well knew, the statute itself invites excess. Because of the awesome power the law grants them and their lack of accountability to the rest of the executive branch, independent counsels who want—as Starr did—to avoid becoming a law unto themselves have to interpret the law in a manner that lessens its impact and intrusiveness.

Consider, for example, the approach of Jacob Stein, a former independent counsel who investigated Edwin Meese III during the Reagan Administration and later represented Monica Lewinsky in her immunity negotiations with Starr. Stein's tenure as independent counsel is widely regarded as among the most judicious and responsible. He met those standards, he said at a conference of federal judges in 1997, by focusing narrowly on the matter he had been assigned—even to the point of ignoring information about related subjects that the FBI presented to his investigators. Only by interpreting the wide discretion the law gave him as an authorization to ignore matters beyond his immediate purview could Stein beat the statute into an uneasy submission.

Starr, by contrast, made no effort to interpret the law so as to tame it. Paradoxically, the same hard-line purism about separation of powers that made him hostile to the statute from the start also committed him—in his own mind, at least—to enforcing it rigorously. In accepting the position of independent counsel, he told me he became "a creature of the statute, [with] a duty to accept this obligation that this statute imposes."

This may sound principled in theory, but it is impossible in practice for an independent counsel to avoid some degree of refinement of the statute. Because the independent-counsel law was poorly written, a responsible special prosecutor has to interpret it with a feel for its purpose. Starr himself amended the statute through interpretation on a number of occasions. Poignantly, Starr now concedes that he chose to submit a report on the death of Vincent Foster though there was "no provision [in the law] for a non-final report." The "exigencies," he explained, "were such that we needed to get that report out." Starr said he could only "thank goodness" that nobody had standing to challenge his move or the decision of the judges who appointed him to accept the report.

Given the suspicions among some conservatives that Foster had been murdered, Starr probably made the right call in releasing an interim report on the case. But it is hard to square the rule of necessity he and the Special Division crafted for that circumstance with his protests that any softening of the statute would have usurped Congress's power to legislate. Starr had no choice but to fill in gaps in the law. The trouble was not that he did so, but that—with some exceptions, of which the Foster report was one—he tended to push the law in the wrong direction.

At the heart of Starr's error was his understanding of the nature and purpose of the independent-counsel statute. Within the law lay a tension between a vision of the independent counsel as a prosecutor like any other, and a vision of the independent counsel as a kind of one-person truth commission. On one side of the equation, Congress required that independent counsels follow the Justice Department's policies. In various debates over the statute's reauthorization, Congress also showed clear concern that targets of independent-counsel probes not be subjected to tougher standards of justice than those applied to targets of other criminal investigations. On the other side was the cumulative effect of the law's basic parts, which asked prosecutors to look at a single issue, gave them unlimited time and resources to address it, and then required them to file a report at the end.

Most independent counsels have resolved this tension in favor of behaving like traditional prosecutors with an unusual obligation to write a report at the end of a probe. In practice, however, the truth-commission vision had a way of subtly insinuating itself into the conduct of investigations. This happened in a number of independent-counsel probes, largely as a consequence of the report-writing requirement, with its emphasis on gathering facts and answering nagging questions.

In Starr's case, this tendency was exaggerated by his belief that truth-seeking is the statute's core ambition. In our conversations, in fact, he underscored its precedence over the independent counsel's prosecutorial function. "While the independent counsel is to follow Justice Department practice and procedure,

I think there's an unusual burden uniquely placed on an independent counsel," Starr insisted: "I think the independent counsel uniquely has an obligation to get to the bottom as best he or she can of the matters that have been entrusted to him."

Starr compared the independent counsel to a prosecutor who has been instructed that a particular investigation is so important that it merits diverting resources from other priorities. In his view, when the law was passed, Congress made the policy judgment that matters investigated under it warrant particularly vigorous examination. For an investigation of the president, in particular, Starr believes this requirement greatly constrains the discretion of the independent counsel to cut short an investigation by deciding that the allegations are not important enough to justify a sweeping federal probe. The message from the statute's architects, as Starr understands it, was that "you all are to go out here and get the dadgum facts. It's not important to the public welfare whether you secure convictions or not." He said, "I was quite consistent throughout the investigations. My goal, above all, is to gather the facts. I want the truth, and then along the way to be just and to be fair."

This formulation is critical to understanding the totality of Starr's investigation. The essence of his project was fact-gathering and reporting. Justice was almost an afterthought—something to be obtained "along the way." Placing fairness and justice in the service of truth completely inverts the normal prosecutorial approach, which sees fact-gathering as a means of securing justice.

Starr laments the truth-finding function he believes is at the law's heart. Had he been a policymaker, he told me, he would have never supported such a law. Congress's desire to see the truth come out, he said, could have been served "far better" if it had simply created a truth commission "that then says, 'Amnesty for all! We want to know what happened.' " But Starr was not, of course, a policymaker, but an executor of existing policy. The law, as he read it, offered him no alternative but to deploy his office to examine the matters within his jurisdiction with a thoroughness that, he admits, went far beyond what a normal prosecutor would envision.

Starr's vision of the independent-counsel law contrasts sharply with that of his predecessor, Fiske, who told me, "I definitely conceived of myself as a prosecutor, doing exactly what the Justice Department would do if there had not been circumstances requiring me to do it rather than them." Starr's successor as independent counsel, Robert W. Ray, likewise described a far more modest vision of his role under the statute than Starr conceived, and continues to defend it, though he declined to criticize Starr's reading explicitly: "There is a view of the independent-counsel statute that is kind of the report view: Shine a spotlight and gather the facts. I am not going to shine a spotlight unless it is going to bring me facts with which I can bring a case. All other things are ancillary. My principal role is to bring cases. I am not a Congressional committee, nor am I a newspaper. I am a prosecutor. I turn a spotlight on to see if there are crimes to prosecute, and when I decide I don't have a case, I turn the spotlight off, because my tools are dangerous tools."

Even Walsh, whose Iran-Contra investigation was much criticized for its alleged excesses, professes a far narrower vision of the role of independent counsel than Starr's. According to Walsh, "I never used the grand jury simply as a broad truth-seeking agency. The only power that the independent counsel has to compel testimony is through the grand jury, so you come down to what is the grand jury's role in compelling testimony." Even under the independent-counsel regime, he said, "The grand jury is not a device to answer your questions."

Decrying the quest for truth may seem like an odd objection to Starr's approach. The public, and particularly the press, have come to expect independent counsels to clean up scandals by pronouncing truth from on high about public misconduct. Starr's understanding of the statute mirrored those expectations, which require enormous self-discipline to resist. No matter how often editorial pages demand the appointment of an independent counsel so that the truth can be known, the experienced prosecutor fights the urge to oblige.

As Gerard E. Lynch, now a U.S. district judge in New York City, explained in 2000, the functions of a truth commissioner and a prosecutor are different, and the coercive tools available to prosecutors were not designed for generalized oversight. The "criminal process is designed to decide whether an individual, at a particular moment in time, violated a very specific social norm without qualifying for any of a limited number of particular defenses, and subject to a standard of proof beyond a reasonable doubt," Lynch said. "To confuse the power to prosecute for crimes with the power to broadly investigate malfeasance in office is terribly dangerous."

Starr frankly acknowledged to me the dangers and considered them strong policy arguments against the statute. He likewise acknowledged that an independent counsel could not constitutionally use the grand-jury mechanism to write a report in the absence of any potential criminal question. But he expressed no reservations about deploying the coercive powers of a grand jury even where the prosecutorial interests at stake served almost entirely as a pretext. And where the pretext was for an inquiry more appropriate to a Congressional oversight investigation.

Starr claims that the truth-commission vision of the statute, which is not explicitly expressed anywhere in the law's text, flows out of its legislative history. In his view, Congress in passing the law "said public integrity [in] a certain kind of a case is so vitally important that we want to cabin the discretion of the attorney general and that we want to create a special office. . . . The matter is of sufficient importance to us that we want a specially designated officer who will then get to the bottom of this and will give then, at a minimum, a report to the public of what he has done. That, in my view, is what the independent counsel mechanism was designed to do—for better or for worse." Congress, he said, "wanted thoroughness," and even after it attempted, during one of the subsequent reauthorizations of the statute, to prevent the final reports from being used to damage people's reputations, "the statute [still] requires, without making accusations, [you] to tell as full a story as you can."

Starr's vision of the statute's history is difficult to defend. The independent-counsel law was not written to enable prosecutors to pursue and disclose the truth about executive-branch conduct. Instead, it was written because its drafters feared an inherent conflict of interest when the executive branch supervised prosecutions of its own high-ranking staff. The drafters' goal was not, as Starr suggests, to treat these cases differently from garden-variety ones; it was precisely the opposite, to treat them the same way. To be sure, isolated passages in the original law's legislative history can be read to support Starr's view. But the totality of the history contradicts any idea that Congress was seeking to deflect some portion of its oversight function onto the special prosecutor. As former independent counsel Alexia Morrison put it, "Any serious reflection on the history, law, and practice of independent counsel leaves me with no room for conclusion that anything but a prosecutor was intended."

Neither the statute itself nor its legislative history explicitly describes any truth-seeking function. That makes sense, because Congress's real concern was placing a prosecutor outside the reach of the executive branch. The Congressional reports on the bill never directly discuss the specific nature of the investigations being authorized—which is evidence in itself that Congress was not contemplating anything extraordinary. The House Judiciary Committee, for example, described the "purpose of the legislation" as providing "a mechanism for the court appointment of a temporary special prosecutor when necessary in order to eliminate the conflict of interest inherent when the Department of Justice must investigate and prosecute high-level executive branch officials." The previous year, the Senate Governmental Affairs Committee, in detailing the powers and responsibilities of the special prosecutor, noted: "The whole purpose of this chapter is defeated if a special prosecutor is not independent and does not have clear authority to conduct a criminal investigation and prosecution without interference, supervision, or control by the Department of Justice." Congress meant to create an office that would not answer to the attorney general, yet would conduct a traditional prosecutorial inquiry.

The final-report requirement is also more complicated than Starr's reading allows. In creating the statute, Congress did request a full and complete account of the independent counsel's investigation and intended that report to include a discussion of the evidence. But the purpose of this report was not, as Starr seems to believe, to make as much information public as possible. In fact, Congress designed the reporting mechanism as a check on the special prosecutors. The statute requires final reports that "set forth fully and completely a description of the work of the special prosecutor ..." [emphasis added]. This language contemplates a report on the activity of the independent counsels themselves more than a discussion of the subject matter they investigated.

The legislative history is clear on this point as well. As the Senate Governmental Affairs Committee put it, "This mandatory final report is considered by the Committee to be very important to ensure the accountability of a special prosecutor. The Committee is well aware of the enormous power and responsibility which a special prosecutor has because of all the protections provided in this chapter to make sure that the special prosecutor is independent. This final report will provide a detailed document to permit the evaluation of the performance of a special prosecutor at an appropriate time."

The best reading of the legislative history of the original act, in other words, is that Congress meant to authorize criminal investigations, which would be both thorough and loosely controlled and in which a prosecutor would, at day's end, explain himself.

The subsequent reauthorization debates, which took place because of a five-year sunset provision embedded within the law, resolved any ambiguity about Congress's intentions. In both 1983 and 1994, Congress altered the statute to push independent counsels toward prosecutorial normalcy. The relevant changes in 1983 responded to criticisms of the law generated by investigations of Hamilton Jordan and Timothy Kraft, officials of Jimmy Carter's Administration. Jordan and Kraft had been subjected to special-prosecutor probes because of allegations that they had possessed small quantities of cocaine. Both men were eventually cleared, but they suffered serious harm in the process to their finances and reputations.

There was a widespread sense following these investigations that such matters—which federal prosecutors would normally avoid investigating—were not what the special-prosecutor mechanism was designed for. Congress, in response, clarified that the attorney general had the authority to decline to request an independent counsel where a clear Justice Department policy would preclude an indictment. It also changed the law to allow an independent counsel to dismiss an allegation without investigating it if doing so would be consistent with departmental policies. These changes make little sense if Congress had a truth commission in mind. Congress was insisting that independent counsels should treat allegations as would any other federal prosecutor.

In the 1994 amendments, Congress changed the final-report requirement. Instead of requiring an explanation in writing for a prosecutor's decision not to bring a case, Congress made such explanations optional. The impetus for the change was that Walsh and other independent counsels had been required to include conclusory statements about the conduct of individuals who had not been indicted. The conferees, in explaining the change, noted that the final-report requirement "is unique to the independent counsel process" and "must be understood to be an exception to the norm." The exception is justified, according to the conference report, "by the unique environment in which an independent counsel must operate—without direct and ongoing supervision by senior Justice Department officials." The conferees noted as well that they "consider[ed] to be crucial a discussion of the conduct of the person for whom the independent counsel was appointed to office." This reference clearly suggests that the drafters of the 1994 amendments anticipated (as Starr suggests) that the final report would provide information about the behavior of the principal subject of the independent counsel's investigation—insofar as that information is necessary to justify the indictment decisions the prosecutor would eventually make. But the conferees stated in addition:

Congress also wants to clarify, however, that independent counsels are not expected to and should not take additional investigative steps, such as additional interviews or document requests, in order to produce a detailed report. No investigation by an independent counsel should be lengthened or deepened simply because of the final report requirement. The report should instead reflect only the work required for a prosecutor to execute his or her normal investigative and prosecutorial responsibilities.

This language cannot be reconciled with Starr's idea that the final-report requirement binds a cohesive vision of the independent counsel as an agent of truth. The 1994 reauthorization, which precipitated Starr's own appointment, should have put Starr on notice that after the Iran-Contra spectacle, Congress had no appetite for a repeat of the excesses of Walsh's investigation. The full history of the statute, in short, lends little support to Starr's vision of the law.

Most important, Starr's reading ignores the fact that there is no need for a truth commission. That function is inherent in Congress's impeachment and oversight powers, when it chooses to use them. And that is where truth-seeking belongs, given that Congress, unlike an independent counsel, is politically accountable for the manner in which it conducts its inquiries. In the face of that reality, nothing but the most explicit Congressional command—a command that simply is not present in the law—could justify Starr's breaking away from the traditional prosecutorial role.

Starr's decision to read the central ambition of the statute broadly was no mere academic failure. It was much deeper and more far-reaching. It propelled him to continually intensify his investigation, asking more questions, issuing more subpoenas, litigating more ferociously over claims of privileges by witnesses and subjects of the investigation. In retrospect, it seems obvious that Starr's vision of the statute and his conception of his role under it affected the investigation from the outset—a fact Starr readily admits.

From the time Starr took over the investigation from Fiske in August 1994, he made clear that he did not share Fiske's concern with speed, but, instead, intended to be exhaustively thorough, however long that took. Toward that end, he reopened the Vincent Foster suicide investigation, which Fiske had completed the previous June, and took about three years to resolve it. He also came to rely upon attorneys and investigators who shared his taste for sprawling, unfocused probes.

As the investigation wore on, Starr demonstrated extraordinary difficulty in bringing issues to a close, even long after the prosecutors who conducted the investigations thought they had resolved the issues. In the travel-office case, for instance, Starr held an investigation open while he pursued litigation all the way to the Supreme Court—litigation he was unlikely to win and that had only a hypothetical bearing on his case. Such actions have been cast as the fruits of excessive prosecutorial zeal on Starr's part. They are better understood as logical consequences of the philosophy he brought with him to the job. And Starr himself explains his more controversial actions in terms of his obligation to take whatever lawful and ethical steps were available to him to get the truth.

The truth-commission vision came to its full fruition during the Monica Lewinsky investigation, which was chiefly about truth itself—specifically, about the President's lies and his efforts to encourage others to lie about the most personal of subjects. Out of fear that the story Lewinsky would deliver might prove insufficiently truthful, Starr failed for nearly seven months to bring her as his chief witness before the grand jury. Instead of garnering—or forcing—her cooperation, he went to war with the White House and the Department of Justice over the Administration's spurious assertions of executive privilege to prevent grand jury testimony by close presidential aides and lawyers and by members of Clinton's Secret Service detail.

When Starr finally issued his referral to Congress, he crafted it as a detailed narrative that intended to deliver the story to the legislative branch. Starr's belief that his role was to hand down the truth caused him to provide much more than the mere "information" the law called upon him to yield up. By recasting the prosecutor's role, Starr effectively became an impeachment investigator for a Congress uneager to take the lead on an embarrassing subject.

Ulysses S. Grant once said that he knew of "no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution." This, in the end, is an apt description of Starr's relationship with the independent-counsel law. Starr's vision of his role was a major—and underappreciated—factor in the demoralizing, government-debilitating course the Clinton scandals took. To be sure, other factors, like Clinton's dogged opposition to Starr's every move, also played a role. But Starr's interpretation of the independent-counsel statute burned into an inquisitorial fire that helped consume not only Clinton's presidency, but also the law that Starr once hated and then remade in his own image. In the wake of Starr's investigation and the Clinton impeachment, Congress allowed the independent-counsel law to lapse. Truth, it turned out, was not worth the consequences.

Benjamin Wittes writes about the law for the editorial page of The Washington Post and is author of the forthcoming book Starr: A Reassessment (Yale University Press), from which this article is adapted.

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