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Kenneth W. Starr's Whitewater probe has cost more than $26 million. (AFP File Photo)

Starr: Relentless or Reluctant?

By Ruth Marcus
Washington Post Staff Writer
Friday, January 30, 1998; Page A1

When he started work as the Whitewater independent counsel in August 1994, Kenneth W. Starr knew exactly what he didn't want to be: a seemingly permanent prosecutor whose investigation dragged on interminably -- in short, a Lawrence Walsh, whose Iran-contra inquiry lasted two administrations past the one he was charged with probing.

Yet 3 1/2 years later, Starr finds himself at the helm of an investigation that has assumed Walsh-like proportions, spending more than $26 million in an inquiry that began as an examination of a 1978 Arkansas land deal and has since metastasized to encompass the firing of White House travel office employees, the gathering of FBI files on Republican White House aides, the possible perjury of President Clinton's former White House counsel and the mysterious reappearance in the White House of Rose Law Firm billing records two years after they were subpoenaed.

Now, with the latest and most explosive expansion of his probe -- into allegations that the president tried to cover up an affair with a White House intern -- the Clinton administration is engaged in an extraordinary public feud with Starr that has underscored two starkly different views of the 51-year-old former federal appeals court judge.

Is Starr, as the White House and its allies charge, an overzealous and politically motivated prosecutor hounding the Clintons like Victor Hugo's obses sive Inspector Javert pursued Jean Valjean, relentlessly "scratching for dirt" as first lady Hillary Rodham Clinton put it this week? Or is he, as Starr associates describe him, a reluctant investigator who would like nothing better than to rid himself of the whole affair, but is forced to head off in new directions because of White House obstructionism and new evidence of questionable behavior?

The truth is elusive because so much of the work of Starr's office has been conducted under the necessary veil of grand jury secrecy. But it may well lie somewhere between these views, the story of a miscast man -- a political partisan with no prosecutorial experience -- in a job that would be difficult under any circumstances but has been made even more so by forces both within and outside his control.

A Unique Creature

The independent counsel statute creates a unique and powerful creature. While bound to follow the policies of federal prosecutors -- and Starr has repeatedly described his effort to create a "microcosm" of the Justice Department -- the counsel is not circumscribed by normal considerations of money or efficiency. His budget is unlimited, his ability to spend time and manpower on virtually whatever strands of investigation he chooses is unmatched, and, in a sense, his ultimate success is judged on whether he reels in a big fish.

However, some Justice Department officials who have dealt with Starr over the years do not regard him as overzealous or even unusually aggressive in the way he has pursued his mandate.

"Starr really has not done anything to abuse the kind of latitude that the system grants him," said a Justice Department official. Rather than rapaciously seeking to expand his mandate, said another official, "We are talking about a guy who wanted to hang it up and move to Malibu after all," referring to Starr's aborted career switch to the deanship of Pepperdine University Law School in California.

While the investigation of the Clintons continues, Starr's lawyers can point to several major convictions -- of former Arkansas governor Jim Guy Tucker, the Clintons' former Whitewater business partners, James and Susan McDougal, and former associate attorney general Webster L. Hubbell. The independent counsel also has secured 10 guilty pleas from lesser banking figures in Arkansas.

But Starr's conduct before and after taking the independent counsel job -- his alliances with conservative groups, his public comments, his continuation of a legal practice that earns him more than $1 million annually even as he investigates the president -- has provided ample ammunition for those who seek to portray him as a Captain Ahab, obsessed with harpooning the great white whale no matter how lengthy the quest.

Yet the Clinton White House in many ways has been its own worst enemy in the investigation, and those who know Starr paint the picture of a man who set out determined to conduct a fair-minded and prompt inquiry only to become increasingly convinced that he was not being dealt with honestly, including by the president and first lady themselves.

It is the White House's conduct -- the firing of the travel office employees, the gathering of FBI files on Republicans -- that has given rise to the expansion of Starr's mandate, some of which has come not at his own request but at Attorney General Janet Reno's request.

The unprecedented appearance of Hillary Clinton before a grand jury two years ago illustrates the gulf between the Starr and Clinton camps and helps explain the bad blood between them. The White House sought desperately to avoid what officials viewed as a public humiliation, arguing that Starr could obtain whatever testimony he needed with a private interview at the White House, as had been done several times previously.

"It was a deliberate effort to tarnish and make as salacious as possible this whole development," said former White House special counsel Jane Sherburne. "At that point I concluded the guy was on a mission not to find the truth but to destroy the president and Hillary."

Starr's defenders say that far from engaging in a personal vendetta, he was only following the advice of career prosecutors in his office, backed by ethics adviser and former Watergate Senate counsel Sam Dash.

The unusual testimony was appropriate, the lawyers argued in their meetings with White House officials, because the missing Rose Law Firm billing records had reappeared under such mysterious circumstances, because the first lady was one of the few people in a position to know how they had surfaced, and because the grand jurors needed under those conditions to assess her answers in person.

John D. Bates, Starr's former deputy who left recently for private practice, took issue with Sherburne's accusations of a partisan witch hunt. "The independent counsel's office has been staffed over the last several years by professional prosecutors with enormous experience who have diligently and properly followed relevant leads in an attempt to discover the truth," he said. "These individuals are not partisans who are on a mission but rather professionals who take their jobs and obligations seriously."

The story of Starr and his investigation is replete with ironies, the first being the fact that Starr was put into his position, or so the appointing authorities said at the time, precisely to avoid the very questions of partisanship and unfair dealing now being hurled at him.

Starr's Appointment

The original Whitewater special prosecutor was Robert B. Fiske Jr., a moderate Republican selected in January 1994 by Reno, who had the authority to make the appointment because the independent counsel law had expired. Eight months later, with the law renewed and Fiske under fire from conservatives for being insufficiently aggressive in pursuit of the president, the three-judge panel in charge of appointing independent counsels abruptly replaced him with Starr. They cited the intent of the independent counsel statute that the outside prosecutor "be protected against perceptions of conflict," a problem in Fiske's case, they said, because of his initial selection by Reno.

The outcry from some quarters of the Clinton camp was immediate. Starr had been a top aide in the Reagan Justice Department, named to the federal appeals court here by President Ronald Reagan, and returned to the department as solicitor general, the government's top advocate before the Supreme Court, under President George Bush. He had toyed with running as a Republican for the U.S. Senate from Virginia, and had served on the finance committee for a Republican congressional candidate.

And -- in an episode that underscores the unfortunate collision between the two matters -- Starr had spoken out publicly in the Paula Jones sexual harassment lawsuit, disputing Clinton's assertion that he should be immune from being sued while in office. Starr had considered filing a friend-of-the-court brief in the case on behalf of a women's group, before his selection as independent counsel made the matter moot. And -- Jones's former lawyers now say -- he even consulted with them in two or three telephone calls that dealt with the legal arguments to be made against Clinton's immunity claim.

Former Jones lawyer Joseph Cammarata said this week that the discussions, instigated by Jones's side, concerned only legal theory. "He's not sympathetic to Paula Jones's case," Cammarata said. "It was either you believe there's immunity or there is not immunity. Those were constitutional principles."

New York University law professor Stephen Gillers, an expert on legal ethics, said, "Back when he was appointed, that was one of several factors that should have led the court to choose somebody else as a matter of judgment."

Then came the disclosure that the removal of Fiske and appointment of Starr came on the heels of a meeting between North Carolina Republican Sens. Jesse Helms and Lauch Faircloth and Appeals Court Judge David B. Sentelle, who headed the panel that appointed Starr. Faircloth had been a leading crusader against Fiske's continuation in office.

That "unimmaculate conception," as one Starr associate called it, was bad enough. Starr's conduct afterward stoked the fire. He continued his lucrative legal practice as a partner at Kirkland & Ellis, earning $1.1 million in 1996, the last year for which he has filed a financial disclosure form. Such outside work -- he also taught a constitutional law seminar at New York University law school -- prompted criticism from those who thought he should devote full time to the Whitewater investigation.

Starr rejected such criticisms, but his choice of clients also came under scrutiny, as did some of his continuing associations.

He argued for the Brown & Williamson Tobacco Co. in an appeals court case involving class-action lawsuits, drawing criticism that he was aligning himself with an industry that was spending millions to oppose Clinton and the Democratic Party. He represented the state of Wisconsin, in a case underwritten by the conservative Bradley Foundation, upholding the use of school vouchers. He continued to serve on the board of advisers of the Washington Legal Foundation, a conservative group that has been critical of Clinton administration policies.

Even Dash, Starr's in-house ethics counsel, told The New Yorker in 1996 that "What he's doing is proper . . . but it does have an odor to it."

And his public comments went too far for the taste of some seasoned prosecutors -- and certainly for the White House. In one speech that drew significant criticism, he spoke in October 1996 at a law school run by religious broadcaster Pat Robertson, who has been highly critical of Clinton on Whitewater and other issues. Starr defended the appearance as "entirely appropriate."

Said one person who knows him well, "I think Ken is the kind of person who is so confident of his integrity that he can't imagine anybody would want to apply conflict of interest rules to him."

The Clintons' Whitewater lawyer, David E. Kendall, issued a six-page public blast at Starr last June after a New York Times Magazine profile of Starr that reported he had "provided background assistance . . . but declined to be quoted directly." Kendall accused Starr's office of mounting a "leak and smear" campaign, while Starr said that all the examples Kendall cited were based on public court statements.

Meanwhile, the investigation dragged on.

The Investigation Expands

As he has tried to get to the bottom of the original Whitewater allegations -- including whether Clinton, while governor of Arkansas, pressured businessman David Hale into making an illegal loan to Whitewater business partner Susan McDougal -- two critical witnesses have remained unavailable to Starr: former Arkansas governor Tucker and McDougal herself.

Although Tucker was convicted in one case brought by Starr, he has been indicted in a separate matter involving cable television companies. The indictment was handed up in the summer of 1995, but the case has not yet gone to trial because Tucker contested Starr's authority to bring the case, a matter litigated up to the Supreme Court. Starr's jurisdiction was upheld, and the case is set for trial next month. Until that is concluded, Starr's prosecutors will not be able to interview Tucker about what he knows about Clinton and the loan.

At the same time, Susan McDougal, who is viewed as a critical potential witness about Clinton's involvement in the Whitewater matter, has been jailed for contempt for 17 months for refusing to testify about Clinton despite a grant of immunity.

Then, in January 1996, the Rose Law Firm billing records -- related to work that Hillary Clinton did for the McDougals' Madison Guaranty Savings & Loan -- were discovered in a private area of the White House, opening up a whole new avenue of investigation. That inquiry, too, was stalled with litigation that began in August 1996 over whether notes by White House lawyers of their meetings with Hillary Clinton were shielded by attorney-client privilege -- an issue that Starr's office won last June.

And Starr has opened inquiries on whether White House aides or associates of the Clintons, including Vernon E. Jordan Jr., arranged payments to former associate attorney general Hubbell in an effort to ensure his silence on Whitewater matters. Hubbell, a former law partner of Hillary Clinton, resigned from the Justice Department before pleading guilty to fraud and tax evasion while in private practice.

Starr also has had to grapple with matters only tangentially related to Whitewater. The issue of whether deputy White House counsel Vincent W. Foster Jr. committed suicide had been investigated and answered by Fiske (he said Foster had) but Starr reopened that investigation after conservative conspiracy theorists continued to assert that Foster had been killed. In July 1997 he produced a lengthy report debunking the various murder theories and concluding that Foster had in fact killed himself.

The travel office firings came under Starr's purview because the White House turned over to congressional investigators a memorandum by former administration official David Watkins suggesting that Hillary Clinton may have given false testimony about the role she played in the firings. Starr told Reno he was prepared to take on the matter, and she expanded his jurisdiction, because Watkins was already caught up in the Starr investigation due to his role in the handling of the Foster suicide.

Resolving that issue has been stalled in part by yet another dispute over attorney-client privilege -- whether Foster's personal lawyer, James Hamilton, should have to testify about what he discussed with Foster in a conversation shortly before the suicide. The Supreme Court is now considering whether to review that privilege claim.

Meanwhile, the issue of whether the White House had improperly received FBI personnel files of Bush and Reagan administration employees ended up in Starr's lap largely because of efficiency considerations -- some of those involved, such as Watkins, were already under review by his office. And as congressional inquiries have continued, other issues, such as whether former White House counsel Bernard Nussbaum commited perjury in his testimony, also have been piled on Starr's plate.

As the investigation has gone on, Starr has been accused of hardball and improper tactics. Last summer, The Washington Post reported that FBI agents and prosecutors working for Starr had questioned Arkansas state troopers about their knowledge of any extramarital relationships Clinton may have had while he was governor, as well as a number of women whose names had been mentioned in connection with Clinton.

Tactics Questioned

Kendall said it showed that Starr's investigation was "out of control," but Starr said he was using "well-accepted law enforcement methods" to get relevant information about the land deal and any efforts by administration officials to obstruct his inquiry.

Some lawyers who have dealt with Starr have complained that he has repeatedly called the same witnesses before the grand jury on peripheral matters in order to create a "perjury trap," issued overbroad subpoenas, and pursued the littlest of fish in his zeal to get at higher-ups.

"They had an attitude of intimidation and nastiness that maybe you treat the Mafia and paid Mafia lawyers that way," said one lawyer who has had extensive dealings with the office.

Others reported professional dealings. "I had no problems with them," said Stanley M. Brand, who represented former Clinton adviser George Stephanopoulos. "They were . . . guys who seemed to me to be well within the pale of what I'm used to dealing with."

Now, with an entirely new line of inquiry before him, Starr's hopes of moving on to Pepperdine Law School -- an idea he raised last February but quickly abandoned after a public outcry -- appear dimmer and dimmer.

During the furor over the Pepperdine appointment, Starr talked about his vision of his prosecutorial role in terms that appear as apt today as then.

"One might say, what does that have to do with Whitewater?" he said, referring at the time to the Hubbell indictment. "But if you discover evidence of a crime during the course of your investigation, should you investigate and prosecute that offense?"

He went on to answer his own question with another one: "How important is it we keep our channels of government service as free as we possibly can from the pollution of crime? That's ultimately a fundamental moral judgment by the people of the United States as embodied in the office of independent counsel."

Staff writers Roberto Suro and Susan Schmidt and staff researcher Ben White contributed to this report.

From Real Estate to Alleged Affair

Since he took over the Whitewater investigation from Robert B. Fiske Jr. in August 1994, independent counsel Kenneth W. Starr has probed a wide range of allegations against the Clinton adminstration.

Whitewater land deal

Starr continued Fiske's probe into the Clintons' involvement as partners in the Whitewater land development company and with Madison Guaranty, a failed savings and loan. The most serious charge was that then-Arkansas Gov. Clinton pressured an associate into making an illegal loan to partner Susan McDougal.

Vincent W. Foster Jr. suicide

Starr, taking over from Fiske, investigated the circumstances under which the deputy White House counsel shot himself in 1993 and the handling of his files after his death.

Missing billing records

In 1994 Starr subpoenaed records from the Rose Law Firm, where Foster and Hillary Rodham Clinton used to work, relating to Madison Guaranty. The files were found January 1996 in the White House residence. Starr expanded his probe into whether the administration hid evidence.

Travel office firings

In March 1996 Starr began investigating what role, if any, the Clintons had in the 1993 firings in the White House travel office.

FBI files

After Attorney General Janet Reno decided the FBI could not investigate the case, Starr looked into improper White House requests for FBI files including those of Republicans from earlier administrations.

Monica S. Lewinsky

On Jan. 12 Linda R. Tripp brought Starr tapes of her conversations with Lewinsky; on Jan. 16 he was given permission to expand his investigation into allegations of perjury and obstruction of justice by President Clinton and Vernon E. Jordan Jr.

How Starr got permission to expand his investigation

On Jan. 16, Reno submitted a petition, excerpted below, to the three-judge panel that oversees independent counsel investigations:

The Department of Justice has received information from Independent Counsel Kenneth Starr that Monica Lewinsky, a former White House employee and witness in the civil case Jones v. Clinton, may have submitted a false affidavit and suborned perjury from another witness in the case.

In a taped conversation with a cooperating witness, Ms. Lewinsky states that she intends to lie when deposed. In the same conversation, she urges the cooperating witness to lie in her own upcoming deposition.

I have determined that it would be a conflict of interest for the Department of Justice to investigate Ms. Lewinsky for perjury and suborning perjury as a witness in this civil suit involving the president. . . .

I have also determined that the taped conversation establishes that further investigation of this matter is warranted.

It would be appropriate for Independent Counsel Kenneth Starr to handle this matter because he is currently investigating similar allegations involving possible efforts to in-fluence witnesses in his own investigation. . . .

The panel granted Reno's request the same day, in a document excerpted here:

The Independent Counsel shall have jurisdiction and authority to investigate to the maximum extent authorized by the Independent Counsel Reauthorization Act of 1994 whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law . . . in dealing with witnesses, potential witnesses, attorneys, or others concerning the civil case Jones v. Clinton.

The Independent Counsel shall have jurisdiction and authority to investigate related violations of federal criminal law . . . including any person or entity who has engaged in unlawful conspiracy or who has aided or abetted any federal offense, as necessary to resolve the matter described above.

The Independent Counsel shall have jurisdiction and authority to investigate crimes, such as . . . any obstruction of the due administration of justice, or any material false testimony or statement in violation of federal criminal law, arising out of his investigation of the matter described above. . . .

Washington Post staff writers Roberto Suro and Sue Schmidt and staff researcher Ben White contributed to this report.

© Copyright 1998 The Washington Post Company

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