"Starr: A Reassessment"
With Benjamin Wittes
Author, Washington Post Editorial Writer
Wednesday, May 15, 2002; Noon EDT
Was Kenneth Starr out to get the Clintons, or simply trying to enforce the law? The new book, "Starr: A Reassessment," evaluates and critiques Starr's tenure as independent counsel. Relying on lengthy, revealing interviews with Starr and many other players in Clinton-era Washington, the Post's Benjamin Wittes arrives at a new understanding of Starr and the part he played in one of American history's most enthralling public sagas.
Wittes was online Wednesday, May 15 at Noon EDT, to discuss his book, Ken Starr and Starr's tenure as independent counsel.
Wittes is a Washington Post editorial writer, who writes on matters involving the federal courts, major federal investigations, law, and criminal justice. He wrote extensively about the Starr investigation and the impeachment of President Clinton.
A transcript follows.
Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
Benjamin Wittes: Let me start out by describing my book, what it argues, and what it doesn't argue. Many of the questions reflect a certain misperception about the book, one that has been promoted on the web: specifically that the book is a defense of Kenneth Starr. It isn't. It is, rather, a critique--albeit a complicated one that does not presume malevolent intentions or unethical behavior on his part. I approached Starr shortly after he stepped down as independent counsel and asked him to sit for a series of on-the-record interviews about his tenure in office. The purpose was to explore the question of whether his reputation as an out-of-control special prosecutor was a fair one or whether the direction his investigation took--particularly during the Lewinsky saga--was better understood as a structural consequence of the independent counsel law itself. I concluded that much of the conventional critique of Starr is wrong, but that Starr for different reasons bears great responsibility for the direction his probe took.
My argument, in a nutshell, is twofold: First, that both the conventional critique of Starr (that he was a sex-obsessed, partisan crusader) and that conventional defense of Starr (that he was a noble warrior on behalf of the rule of law) are silly caricatures. Starr, in my judgment, is a decent man who set out to conduct a reasonable investigation and did his best to do so. He is neither a demon nor a saint, and the caricatures have largely obscured efforts to evaluate his investigation on the merits.
Second, in my view, Starr's great error lay not in his motives or his ethics, but in his fundamental understanding of his role under the independent counsel law. Starr saw his role not as that of a conventional prosecutor but as a kind of truth commissioner, charged with getting to the bottom of issues of public moment. This self-conception was, I believe, an honest interpretation--not one motivated by a secret desire to "get" the Clintons. That said, I also think it was spectacularly wrong: at odds with the purpose and history of the law and tending always to push the investigation towards ever-greater aggressiveness. It also had enormous practical consequences. Where the conventional prosecutor might have decided that he or she knew enough to make charging decisions and shut down the investigation, Starr felt obliged to look further to satisfy the demands of history as well as justice. This vision, I argue, greatly lengthened and deepened his investigation. And it led to a lot of the specific steps for which Starr -- rightly, in my view--has been accused of excess: the detail-laden report on Lewinsky, the serial indictments of Susan McDougal and Webster Hubbell, the reopening of the Vince Foster suicide probe. All of these have been cast as excessive prosecutorial zeal or the fruits of Starr's alleged political motivations. I believe they are better understood as logical extensions of the philosophy he brought with him to the job.
Chatham, N.J.: The excerpt from your book in the LegalReview did not mention anything about Starr's ties to the extremist fringes of the Republican Party. In the book do you focus on that part of Starr's background?
Benjamin Wittes: I do not focus on it at length in the book, though I do discuss briefly his decision to continue his client representations while serving as independent counsel--which I think was a significant error. Starr is a conservative. There is no doubt or dispute about this. There is similarly no doubt that he has close relations with other conservatives. He can, in my judgment, be fairly criticized for demonstrating lousy judgment in the message some of his ongoing associations throughout the probe sent to the Clintons' many supporters. That said, there is nothing especially unusual about a special prosecutor with a strong party background--nor should it cloud one's judgment about how the investigation was conducted. Archibald Cox and Leon Jaworski, for example, were both well-know as Democrats, and we don't evaluate the Watergate investigation in that context. Starr's history as a Republican, it seems to me, ought to have been a part of the background of the discussion of his tenure. For too many of his critics, his party ties were the end of the discussion.
Reston, Va.: I attend the same church that Starr does, and on numerous occasions, I sat in on an adult Sunday school class he taught over a period of a few months. He strikes me as a guy with an especially strong focus on what he believes his job is, and is very meticulous about doing his job. As a result, I tend to view his conduct in the Clinton matter not so much as a personal vendetta to bring down Clinton, but as a fierce determination to thoroughly do the job that was assigned to him (whether his understanding of that job was correct or not is another matter). Do you agree or disagree with this view?
Benjamin Wittes: I agree with it completely. My argument with Starr is over the way he envisioned his job, which I think was wrongheaded. But I don't believe he was on a vendetta, nor do I think the evidence that he was amounts to more than repeated assertion.
Harrisburg, Pa.: Do you have recommendations for any changes in the laws for special prosecutors? Should they be provided more specific guidelines?
Benjamin Wittes: One of the most creative and interesting set of recommendations for a new special prosecutor regime (the old one, of course, has expired) was suggested in a law review article by one of Starr's prosecutors, a fellow named Brett Kavanaugh. He suggests, among other things, having the President himself name the special prosecutor with the advice and consent of the Senate. It seems to me this is a strong instinct that ought to be seriously considered. It would make it very difficult for a White House to attack a special prosecutor, as Clinton's did to Starr. And the Senate confirmation process would ensure that the president had not appointed a lackey. There is a great public discussion to be had about how we want these probes to be conducted in the future. The appetite for that discussion, however, seems to be lacking at the current time.
Washington, D.C.: What is the legacy of Monica-gate? Is it that we can only elect scandal-free politicians now -- except, perhaps, youthful (up to age 40) binge drinking?
Benjamin Wittes: My suspicion is that, for a time anyway, all branches of government are likely to be a little more inhibited. It's hard to imagine any president not being mindful of how Clinton's behavior came back to bite him. It's also hard for me to imagine that future special prosecutors will not be keen to avoid what happened to Starr. And the public has made clear that it is not eager for scandal. The result is that, particularly because of the war, we're in a lull in scandal-mongering. I don't know how long that will continue, but that's certainly part of the legacy for however long it does.
More formally, the death of the independent counsel law is clearly the scandal's chief legislative legacy. Given its passage as recently as 1994, it is remarkable what a public consensus developed that it needed to go.
Fort Pierce, Fla.: Does Ken Starr ever think of the judgment of history? Does he realize he lost the PR war forever when he wrote that porno report to Congress? And how does he justify the report?
Benjamin Wittes: Please bear in mind that I don't speak for Starr. These are just impressions. But it is clear to me that he does think about it. On the one hand, he clearly believes in his own rectitude. On the other, he once described to me as an "undelicious" irony his having become a poster-boy for the excesses of independent counsels. (Starr has always opposed the statute--dating back at least to the early 1980s.) I think it's fair to say that nobody wants the kind of reputation he now has, particularly not those who believe they did what the law required of them.
Washington, D.C.: I have your book but haven't read it yet -- the account you offer of your approach appeals to me. But I wonder -- and this is kind of vague -- if Starr's mistake in his perception of his responsibility is related to the -- I'm not sure how to put this -- the political right's weak sense of a public sphere or public good, apart from the individual and the marketplace. I don't mean to offer up yet another monolithic notion of right-wing ideology, but it is that lack of a concept of civil society and a public space that I sometimes wonder might be behind "excesses." Any thoughts?
Benjamin Wittes: It's an interesting question. I suspect the answer is no. I think it has more to do with Starr's individual reverence for the idea of truth combined with his personal inexperience as a prosecutor. The latter is an important component. And there are certainly many prosecutors from the Right would would not have adopted Starr's vision of the role--including, by the way, some people in his office.
Harrisburg, Pa.: Your comments please on the following observation: The Starr investigation was the greatest expenditure of opposition research in American political history that resulted in great amounts of inneundo before the 1996 elections that, while they did not change the outcome of that election, nevertheless failed to find any provable allegation from what arose as questions during that election?
Benjamin Wittes: I disagree. Remember that by the time of the 1996 elections, the Starr investigation--building on the work of Robert Fiske before him--had significant prosecutorial accomplishments. Most notably, the initial trial of Susan and James McDougal and Jim Guy Tucker had resulted in convictions for all three. Moreover, even before Starr took over the probe, David Hale--who was making some very specific allegations against President Clinton--had reached a deal with Fiske. The cumulative result was some fairly serious questions about the behavior of both Clintons. These questions were not simply innuendo and they had to be resolved. It seems to me that Starr has to answer for the amount of time that took and his unwillingness or inability to close matters out in a timely way. But that, as well as the other problems, came after 1996. It obscures the importance of the underlying issues to chalk everything up to politics.
Alexandria, Va.: Did Starr delay for months granting immunity to Monica Lewinsky because he disliked Lewinsky's attorney Ginsberg? If so then was that a wise move? Did Starr benefit from delaying Lewinsky's immunity, or was his prosecution harmed by it?
Benjamin Wittes: I treat this question at length in the book. The office's difficulty in dealing with Ginsburg was clearly a significant part of the delay. This was not entirely the office's fault. Ginsburg's behavior was genuinely peculiar, and Starr's office had real doubt as to what it would be getting if it did the deal with Lewinsky. That said, the failure to get her in front a grand jury quickly--either by agreement or with court-ordered immunity--was a huge mistake and very costly in terms of public confidence in the investigation. By failing to get Lewinsky's testimony quickly and refer the entire matter to Congress early, Starr effectively allowed himself to take the political heat for the impeachment probe. This was a great error--one ultimately rooted in the Truth Commission vision of his role--that both hurt him and reduced Congress's accountability for the impeachment. The Constitution gives this power to the House of Representatives, not the independent counsel. The House should have conducted its own impeachment investigation; Starr should not have allowed the House to defer to him. His stated reason, by the way, for not doing the deal was that he was not confident that he was getting the complete truth from Lewinsky. This is a problem that prosecutors face from witnesses all the time.
Alexandria, Va.: Kenneth Starr was only marginally more popular in this country than Yasser Arafat. Why was Starr so unpopular? I disliked him a lot myself, but I was surprised that the country agreed with me on this one.
Benjamin Wittes: I think Starr's unpopularity was a function of several interrelated things:
1) A campaign of defamation against him,
2) The public judgment that the matters he was investigating were relatively trivial,
3) Clinton's popularity, and
4) The genuine excesses of his investigation.
All of these fed on each other.
New York, N.Y.: What did Ken Starr have to say about the criticisms leveled at him by his Watergate-era consultant, whose name I forget -- the gentleman who resigned shortly after the Starr Report was released because he believed Starr had become an advocate for impeachment rather than a non-partisan investigator?
Benjamin Wittes: Starr has disagreed with Sam Dash's criticisms. For whatever it's worth, I think Starr *did* effectively become an impeachment investigator for Congress--although Dash, it seems to me, is ill-positioned to make this criticism. Dash did not object to the referral, just to Starr's testimony about the referral. I have never been able to understand why that is the magic line. It seems to me, rather, that the Rubicon was crossed when Starr decided to tell the story to Congress (in the referral), rather than simply to conduct a narrowly criminal investigation and refer whatever information he came across in the course of doing so that might be grounds for impeachment. The statute never required a narrative referral. Once Starr had given one, testifying in its defense seems to me a marginal step.
Arlington, Va.: I appreciate your fine analysis of Starr's performance, and I just noticed your comment about Starr's inexperience as a federal prosecutor. I have often noticed the contrast between Starr and his successor, an assistant U.S. attorney. While Starr, of course, is well-known for his brilliance at sometimes arcane constitutional issues in the solicitor general's office, wasn't he an unusual choice for special prosecutor with that background? Should any new special counsel statute include a requirement for a practicing federal prosecutor?
Benjamin Wittes: Thanks for the kind words. I agree there is an enormous contrast between Starr and Ray. There is also a great contrast with Fiske--one I harp on in the book. And yes, I think Starr's background as an appellate lawyer, not a prosecutor is part of the explanation. That said, Starr was not the first ex-solicitor general to serve as a special prosecutor. Cox, just like Starr, had been SG too, and he is not the first either to have limited prosecutorial experience. That said, I think there should be a heavy, heavy presumption not merely that special prosecutors will have experience as federal prosecutors but that they have experience in complex white collar matters specifically.
Alexandria, Va.: When did Starr realize that President Clinton would remain in office until 2001?
Benjamin Wittes: I don't know.
Alexandria, Va.: Did Starr or the OIC ever secretly provide The Post with information about the Lewinsky matter?
If so then was The Post compromised? If Starr is doing you favors by giving you information then didn't that discourage The Post from investigating whether illegal leaks by OIC staff occurred?
Benjamin Wittes: There are two reasons why I can't answer this question and the others like it:
1) I honestly don't know. The Post's editorial page, for which I work, is editorially separate from the news side of the paper. I don't know who the sources were for the news side's many stories related to the investigation.
2) If I did know who those sources were, I would be wildly inappropriate of me to say.
As to whether our receipt of any hypothetical leaked material compromises us in writing about leaks and the investigation generally, I hope not. We write based on leaks all the time. That's how a lot of news gets out to the public. The public, it seems to me, is entitled to take our views on leaks with a grain of salt: they are part of our life-blood, after all. But at the end of the day, our stories should be judged by whether or not they are true. And our analysis should be judged by its acumen.
Bethesda, Md.: Your comments are interesting-- wasn't there a general confusion of roles in the whole situation? Not just for Starr as prosecutor/investigator but also for many others, as journalist/lawyer/political partisan?
Benjamin Wittes: It's an interesting point. A lot of roles did get blurred. That's probably inevitable in times of great upheaval. I think Starr, however, should have exercised better self-discipline in the role he constructed for himself. A different, better, reading of the statute, as I argue in the book, was possible. Some of the upheaval, I suspect, would have happened anyway. But Starr could have adopted a reading of the law that gave himself more latitude to behave with more discretion than the one he chose. I think that, and not any great political conspiracy, was the great flaw of his tenure.
Washington, D.C.: While your hypothesis is certainly defensible, the removal of the previous independent prosecutor (a man with significant experience actually prosecuting cases) really is what caused the whole mess. Starr is really a creature of the far right Republican machine and the three judges who installed him knew how he would behave.
Benjamin Wittes: I agree with you that the removal of Fiske was an error. I also think Starr never really recovered in the public mind from the circumstances of his appointment, which had an air of deck-stacking in it. That said, I think your second point is largely wrong. Starr was among those whom the Justice Department considered to conduct the probe; Attorney General Reno ultimate chose Fiske, but Starr was on the short list. His reputation as a partisan hound was largely the creature of his appointment; it didn't predate it with anything like the intensity with which it is now received wisdom. Removing Fiske was a terrible mistake, but I've never been convinced it was corrupt.
Benjamin Wittes: This is a subject about which people are deeply emotional. With Clinton and Starr now both out of office, we as a political society can begin to unpack the matter in a way we could not do in real time. In order to do this effectively, however, we have to be willing to zero-base certain assumptions. Liberals need to be willing to consider the possibility that Starr was not a satanic figure. Conservatives need to consider the possibility that he might have erred, even significantly, in key decisions. The point of the book is to begin that process by focusing on the way Starr understood--and I believe misunderstood--his role. Thanks very much for your questions.
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