A Prosecutor Bound by Duty
Washington Post Staff Writer
Tuesday, June 15, 1999; Page A1 This is the last of three excerpts from "Shadow: Five Presidents and the Legacy of Watergate." Copyright © 1999 by Bob Woodward, Simon & Schuster.
The morning of Sept. 9, 1998, was D-Day for independent counsel Kenneth W. Starr, the final deadline he had set for completion of his impeachment referral against President Clinton. As far as Starr was concerned, this was the last opportunity to deliver his findings to Congress without seeming to interfere with the coming election.
For months, Starr and his lawyers had been working secretly to prepare the report. When it was drafted a debate broke out inside the counsel's office about the graphic sexual details of Clinton's affair with Monica Lewinsky.
Two lawyers in the office, Starr protege Brett Kavanaugh and Notre Dame law professor William Kelley, went to the independent counsel to object. The first section, in narrative form, had grown to more than 200 pages with 1,000 footnotes. Kavanaugh pointed out that they should not be trapped by their earlier drafts, when the president was still denying any relationship with Lewinsky. They didn't need to prove what Clinton no longer denied.
A more effective tactic, the lawyers told Starr, would be to send only a grounds section that would relate all the evidence to specific charges of perjury and obstruction of justice. They had come up with 11 in a chapter that read like an expanded indictment. The narrative was extraneous.
"No," Starr said, "we need to have an encyclopedia. It will show all the information. It will show how much work we did."
Kavanaugh was concerned that Starr thought it was the catalogue of Clinton's sexual behavior that provided a basis for recommending that Clinton should be bounced out of office, rather than the alleged crimes. The narrative was going to give ammunition to Starr's critics that he was a sex-crazed prosecutor.
All the attorneys in the office continued to discuss the role of the independent counsel in an impeachment. Was it to remove Clinton from office, try to convict him as a regular prosecutor might? Or was it to provide information to the House?
The three senior attorneys who had interrogated President Clinton, Jackie Bennett, Bob Bittman and Sol Wisenberg, argued that there were crimes and that impeachment was the proper vehicle to try a president.
"The narrative shows how pathetic Clinton is," Kavanaugh argued, "that he needs therapy, not removal. It's a sad story. Our job is not to get Clinton out. It is just to give information."
In late August, Kavanaugh and Kelley proposed to Starr that their grounds section be placed before the long narrative in the formal impeachment referral document to Congress. Starr rejected their suggestion. "I love the narrative!" he said.
By the morning of Sept. 9., the lawyers were tired, operating on little sleep. Tensions were high. Starr had read through the entire referral a number of times, giving or withholding his approval for all the changes. The language was getting stronger.
Just after 3 p.m., the report was sent to Congress.
A Prosecutor Unwilling to Quit
Ever since his appointment as independent counsel in August 1994, Starr had battled the Clinton White House investigating Whitewater, the 1993 travel office firings, the White House collection of prominent Republicans' FBI files, and finally, the Lewinsky matter. The wrangling had begun almost from the start.
Back in the spring of 1995, Starr called then-White House counsel Abner Mikva and asked to question the president and first lady under oath. Mikva proposed that Starr take the testimony at the White House on a weekend. Starr agreed that would be fine in lieu of formal grand jury appearances.
It was to start at 1 p.m. Saturday, April 22. Mikva called Starr that morning and asked to do it at noon instead. Starr agreed. They gathered at noon in the Treaty Room of the White House. Mikva could see that Clinton seemed to like Starr. They almost hit it off. At the end, Starr, a history buff, made some comments and asked some friendly questions about the White House.
"Ab," Clinton said, "when we're through, make sure Judge Starr sees the Lincoln Bedroom."
As the president was saying that, Hillary Clinton entered the room. "Don't you dare show him the Lincoln Bedroom," she whispered to Mikva.
Mikva decided to obey the last order. Starr did not see the famous room.
The president left, and Hillary sat down. She was measurably cooler. After a few minutes there was a knock at the door. A White House steward entered the room.
"Golf clubs! Golf clubs!" the steward exclaimed. He opened a closet, took out a set of golf clubs and exited with them hurriedly.
Starr and the lawyer who accompanied him realized suddenly that Mikva had called to advance the session an hour so Clinton could get in a full round on the spring Sunday. Mikva was looking at the ceiling.
As Starr's investigation continued, relations with the White House deteriorated. Throughout, Hillary Clinton was a focus of the investigation. In 1997, the independent counsel convened a formal meeting of his attorneys to review the evidence against the first lady. His prosecutors from Little Rock joined in on the speakerphone.
"She's the queen," Hickman Ewing, Starr's hardball Little Rock deputy, said from Arkansas. He had drafted an indictment of the first lady.
"It is not appropriate to refer to Mrs. Clinton that way," Starr said, interrupting. He went on a tirade in his schoolmarmish, prissy way. "She is the first lady," he declared indignantly, as if the others might have forgotten.
After hours they concluded they had a circumstantial case but no direct, compelling evidence, no witness alleging specific crimes by Mrs. Clinton. Sam Dash, the former Watergate committee chief counsel now serving as Starr's ethics adviser, said that to indict a first lady they would have to have unusually strong evidence, proof that would convince the public that something was truly rotten and wrong. Dash thought Starr agreed.
But Starr seemed more willing to continue than others on his staff. He was reluctant to close anything out while there was still a possibility.
When the Lewinsky scandal broke in January 1998, Starr saw it as a chance to break into the ring of silence that had surrounded Clinton for years.
He began an investigation that continued for months while the Clinton White House attacked his prosecutorial tactics. In June, Starr made his own attack on defense lawyers. "At what point does a lawyer's manipulation of the system become an obstruction of the truth?" he asked in a speech June 1 in Charlotte. "A good lawyer, acting as a counselor, must urge the client against steps that are likely to impede the quest for truth."
Starr seemed to be calling on attorneys to turn in their clients. Some of his own prosecutors reacted critically to the speech. They had seen Starr's criticism of defense lawyers harden. He had argued in the office that it was best for a guilty person to confess and accept punishment so the guilty would be, as he once put it, "better off in this life and the life after."
Starr was behaving as a preacher and father-confessor, not as a lawyer. Some of the attorneys joked that Starr wanted the defense lawyers, who were bound to protect their clients and their rights, to commit malpractice.
"So defense lawyers are supposed to confess," one Starr deputy joked.
Starr seemed to suggest that Clinton's personal attorney, David Kendall, knew the president was guilty in the Lewinsky case, and therefore Kendall shouldn't invoke privileges that deflected Starr from his path to the truth.
Meanwhile, Starr was already preparing for the impeachment referral.
He had carefully studied section 595© of the Ethics in Government Act, which dictated his duties in a possible impeachment. The law directed that an independent counsel "shall advise the House of Representatives of any substantial and credible information ... that may constitute grounds for an impeachment."
He interpreted the law to mean that he had no choice but to advise the House if he had evidence that "may" be grounds for impeachment.
The "may," Starr felt, was an incredibly low legal standard. It meant the "likelihood" or "chance" that the information might be grounds for an impeachment.
He believed they had met that standard in the Lewinsky investigation. He directed a team of three lawyers to begin drafting a document outlining the information gathered in the Lewinsky probe for possible referral to the House on Clinton.
Michael Emmick, a senior prosecutor who had headed the public corruption section of the U.S. attorney's office in Los Angeles, was in charge of a small Monica task force. He argued that they should subpoena Lewinsky before the grand jury, give her immunity and force her to testify. Brett Kavanaugh, the Starr protege who had agreed to return to the independent counsel's office in late May to work on the report, also urged Starr to find some way to get Lewinsky's testimony before sending the referral.
Even with that dilemma unresolved, work on the impeachment referral was proceeding. By late June, Starr had reviewed several hundred pages his staff had written on the evidence, which claimed that Clinton had lied and perhaps obstructed justice.
"This is good," Starr said. "This is strong."
Dash and Kavanaugh and some of the other experienced prosecutors tried to slow Starr down, since they did not have either Clinton or Lewinsky providing direct testimony.
"I've got a strong circumstantial case," Starr said. "It would be improper to withhold it from Congress unless it was weightless."
Some of the attorneys argued against the significance of what they had at that point.
"I feel like I've been in 595© territory since the spring," Starr replied to their objections at one discussion, pounding the table for emphasis, "and I have a statutory obligation to get this to Congress."
Starr said the White House strategy was to delay so any referral would not be ready until fall, to force him to put off sending the referral until after the November congressional elections.
Starr recalled the controversy in 1992 when Iran-contra independent counsel Lawrence Walsh had released material adverse to President George Bush the famous "VP favored" note about arms-for-hostage deals-just five days before the election.
"I don't want to do what Judge Walsh did," he said. "The electorate did not have time to absorb the significance of it."
Suddenly speed was paramount. On July 2, Starr filed a secret request with the three-judge panel that appoints and oversees independent counsels asking for approval to disclose grand jury material in a referral to Congress.
Five days later, the court issued a sealed order "permitting disclosure of all grand jury material that the independent counsel deems necessary." It was a blank check.
Starr had originally set July 31 as the deadline to send the referral to the House.
On July 15, Kavanaugh sent Starr a long memo questioning the decision. Lewinsky, who had changed lawyers, was now within their grasp. It would make little sense without her firsthand account.
The draft of the referral alleged that Clinton had made a series of false statements in his Jones deposition on Jan. 17 about his relationship with Lewinsky. Kavanaugh attempted to tear each one apart. None of the evidence came from either Lewinsky or Clinton. Suppose both of them eventually said the opposite in public or under oath?
Dash was also outraged when he learned that Starr had made July 31 a final deadline for the referral. He heard that unnamed members of the Republican leadership had told Starr that if Congress didn't get the referral by July 31, action would have to wait until after the election.
He wrote Starr a memo arguing that the important portion of 595© was not the "may," but the provision that said the independent counsel should send information if it was "substantial and credible."
Circumstantial evidence by definition, Dash argued, was not "substantial and credible," not sufficient to trigger impeachment of the president.
Starr rebuffed Kavanaugh and Dash.
"We're sending it up July 31," he said. He cited senior members of his staff. "Tom Bienert says I have an overwhelming case. Ronald Mann says I have an overwhelming case. I have a duty."
Kavanaugh checked with Bienert and Mann. They said it was a strong circumstantial case, but only that. Dash told Starr he would resign if they sent up a flimsy referral without solid evidence.
The arguments grew more heated. As Kavanaugh listened, he thought that Starr spoke as if he knew what had happened between Clinton and Lewinsky. He seemed to construe his burden under the law to show what he thought happened, not to prove it.
Why not just send up the evidence that had been gathered without an argument about the grounds for impeachment? Kavanaugh asked. In Watergate, Judge John Sirica had forwarded evidence from special prosecutor Leon Jaworski to the House Judiciary Committee. It contained a road map but no argument.
"I've got this statute," Starr said. He said his reading of 595©, which didn't exist during Watergate, required him to relate the evidence to the possible grounds for impeachment. "I'm not just sending boxes." He pounded the table. "I have an obligation."
After the referral was finally sent up Sept. 9, Kavanaugh worried about the sexual detail in the report.
"This is really bad, and we're going to get blamed," Kavanaugh told Starr two days after the referral was sent to the House. He had heard that Congress was going to release the report without reading it.
Starr agreed. Draft another letter warning the House leaders, Newt Gingrich and Richard Gephardt, about the explicit material, Starr said.
"I caution against a blanket release of the referral without an initial review by some members of the Congress," Kavanaugh drafted for Starr. It was "almost certainly inappropriate for wide public dissemination. ...
"We believe the nation and all parties involved would be best served by such a measured approach," the draft letter concluded.
Kavanaugh brought a computer disk containing the draft to Starr's secretary. The House was voting at this point on whether to release the referral.
Starr began editing. He added "highly" so that a sentence in the letter read, "Certain matters in the narrative and grounds sections are highly explicit."
They had a mini-conference to discuss whether to send the warning. Bittman and Jackie Bennett agreed with Kavanaugh. But the main author of the report, Stephen Bates, disagreed. Paul Rosenzweig, the prosecutor who had the first contact with the Paula Jones legal team in January, was quite vocal.
"Look, it's out of our hands," he said. "They know it's about sex. You've got to let them handle it."
"You're right," Starr said, changing his mind, "it's in their hands." He would not send the letter.
'My Order Says I Have To'
Starr's report was completed, but his investigation was not over. Months later, after the House impeached President Clinton and the Senate began a full-scale trial, Starr was planning to indict Julie Hiatt Steele, a woman whose testimony contradicted former White House volunteer Kathleen Willey's allegation that the president had groped her.
Kavanaugh was appalled. Steele was so tangential she had nothing to do with Clinton or Lewinsky. An indictment of Steele, Kavanaugh wrote in a memo to Starr, would win the "trifecta" for abuse of the independent counsel law. It would be too hard on a bit player, too late in the investigation, and not weighty enough, he argued.
On Jan. 7, 1999, the same day that the Senate trial began, Starr indicted Steele, the only person formally charged in the sex scandal. He claimed he had a duty.
The independent counsel also would not let go of the investigation, now in its sixth year, into the removal of documents from Vince Foster's White House office the night he died. His staff had delivered a 330-page memo to him showing there was no case.
Starr said he believed Henry O'Neill, a uniformed Secret Service officer who had testified that he had seen Maggie Williams, then Hillary Clinton's chief of staff, with a box. "He is a sworn, trained law enforcement officer!" Starr said, pounding on the desk.
His deputies reminded Starr that O'Neill's job was to escort the White House janitors removing the trash on the midnight shift.
Starr did not accept that. The investigation would remain open.
He said he had the same obligation with the travel office investigation. Yes, the president was cleared, but not Hillary Clinton, he said. He recited David Watkins's memo that claimed that Mrs. Clinton was behind the 1993 firings. The inquiry would remain open.
He also would proceed with the FBI files probe. Again, Clinton was absolved. His staff had written a 400-page memo showing that they had no evidence tying Clinton to the files. Why continue?
"My order says I have to focus on Anthony Marceca and others!" Starr said in protest, referring to the Army detailee who had worked updating FBI files collected by the White House. That investigation would remain open, too. He had a duty.
Researcher Jeff Glasser contributed to this report.