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Kenneth Starr, Supernova?
He Hurtled Across the Legal Universe into Whitewater and, Perhaps, an End to His Burning Ambition

By Kim Masters
Washington Post Staff Writer
Tuesday, January 10, 1995; Page E01

Kenneth Starr, Act 1.

He did it all by the book – compiling a perfect resume, walking the path of the prudent man, smoothing his progress with a combination of good nature and good work. One of those people who have their eyes on a very big prize at a very early age.

And virtue was rewarded. The 48-year-old man who is now hotly pursuing the many trails of what has come to be known as the Whitewater affair was once the youngest judge ever named to the prestigious U.S. Court of Appeals for the D.C. Circuit. He became the Bush administration's solicitor general, pleading the government's cases before the Supreme Court. And while he was still a young man, he got a shot at the one thing he really wanted: a seat on the Supreme Court.

Starr was the right man in the right place, but it may have been the wrong time. In an age when "Bork" became a verb, the Supreme Court selection process – always political – became even more so. And some began to question whether Starr was Republican enough. He was conservative, sure. But some critics found him almost overly judicious. He seemed to value congeniality more highly than ideology.

"The general consensus view of people who are active in Republican circles is that Ken was a little soft," says a friend and former colleague at the Justice Department. "He's not an Antonin Scalia or a Clarence Thomas. He's not a hard-line guy who's going to go toe-to-toe with whoever stands up against him."

The call never came.

Kenneth Starr, Act 2.

When the Bush administration had passed into history, Starr the jurist began to morph into Starr the politician. Though he had gone into private practice and started pulling down a reported seven figures a year, Starr wasn't ready to settle down to well-remunerated obscurity.

He came close to running in the Republican primary for the U.S. Senate from Virginia against Oliver North. He served on the finance committee of Kyle McSlarrow, a Northern Virginia Republican who ran unsuccessfully for Congress this past fall. He stepped into the Paula Jones fray, counseling a group of supporters on the position that President Clinton shouldn't be immune to her sexual harassment suit while he remains in office.

Then last August he took the job of independent counsel in the Whitewater investigation. And suddenly the man who hadn't been quite political enough was criticized for being too political to conduct a probe that could involve the president.

All of this leaves Starr-gazers a bit confused. The orderly progression of an exemplary career has veered in an unexpected direction. And as the Whitewater case has come back into the news -- with the plea bargain by Clinton confidant Webster Hubbell and most recently with today's report that Starr is re-interviewing witnesses about the death of White House counsel Vince Foster – it's fair to ask: Just who is this man trying to unravel the president's past, and what does he expect to get out of it?

Starr has refused requests for interviews, but conversations with friends and former associates offer some insight to this cautious non-prosecutor who is running one of the most sensitive prosecutions in recent memory.

"I thought, 'Here's a guy who wants to be on the Supreme Court. How could he take this?' " says public-interest attorney Andrew Schwartzman,

a longtime observer of the Washington legal scene. "It's no-win for him. He's going to {antagonize} either Al D'Amato or the Democrats." D'Amato, chairman of the Senate Banking Committee, has announced plans to hold hearings on Whitewater later this year.

"There are so many things that can go wrong with the mission which are not within your ability to control," says Starr's longtime colleague Theodore Olson. "And there are so many quarters that can be critical of decisions that you make that may be the best decisions. It is a difficult tightrope to be on."

Taking the Plunge

Starr must have known he'd be on a high wire the minute he contemplated the job. As soon as the appointment was announced, Sen. Carl Levin (D-Mich.), then chairman of the panel that oversees the independent-counsel law, questioned the appearance created by Starr's "highly visible partisan political activities." Sen. Patrick Leahy (D-Vt.) said Starr should promise not to run for office or accept a political appointment after serving in the job.

"Here's a man who is talking about running for the U.S. Senate, who has always been named as a potential {Supreme Court} appointee if there's a Republican administration, and I think that if he's going to take this, he ought to make it very clear that in doing so he's forgoing political ambitions," Leahy said.

Robert Fiske had been appointed by Attorney General Janet Reno early last year under pressure from conservatives to name an independent counsel. In August, a three-judge panel headed by David Sentelle replaced Fiske with Starr, ostensibly to ensure that the independent counsel would be perceived as truly independent. But it became known that conservative members of Congress had lobbied the judges to dump Fiske, and that Sentelle had been spotted in the Senate dining room lunching with Sens. Jesse Helms (R-N.C.) and Lauch Faircloth (R-N.C.), one of Fiske's harshest conservative critics.

Now it was the Democrats' turn to cry foul. Five past presidents of the American Bar Association issued a joint statement of concern. Three citizens filed complaints challenging the procedure. But in November, Judge Harry T. Edwards, chief judge of the D.C. Circuit, dismissed the complaints – a decision that was upheld by an appeals panel last month. Starr also hired former Watergate prosecutor Sam Dash as an ethics adviser, and the storm blew over.

Some Democrats even thought that the appointment of Starr could backfire on conservatives, either because he wasn't experienced enough to do the job or because his partisan past could taint the outcome.

In many ways, Fiske seemed ideal for the task: a Republican, an accomplished prosecutor who had gone after racketeers and literally shrugged off death threats, and a man whose political ambitions appeared to be nonexistent.

"If I were Clinton, I'd much rather have Starr," says a senior member of the D.C. bar. "Bob Fiske was a tough, coldblooded prosecutor. Starr is a bright person, but he has a soft side. He's nice – and he doesn't have any prosecutorial experience at all."

Fiske is "vastly better" for the job, concurs a longtime Starr associate. "If you wished to bring down the president of the United States, you'd bring Bob Fiske," he says.

The Starr Charm

The controversy over his appointment was painful to Starr – who has always taken pride in an impeccable reputation. Friends say he truly is a Boy Scout: affable, diligent – so strait-laced that he expressed shock to a colleague when then-Attorney General William Barr used a common obscenity at a meeting attended by women.

"A straight shooter," says Schwartzman.

"He is a guy who is almost unbelievably wholesome in many ways -- teaches Sunday school, coaches his daughter's softball team," says Robert Shapiro, a Harvard law professor who served as a deputy when Starr was solicitor general.

"He remembers names and things about people and the last thing he may have said to them six months ago and things they have in common -- which makes him a person that a lot of people remember, and remember warmly," Olson says.

Not everyone succumbs to the Starr charm. "It can edge over into smarminess," says a former Justice Department colleague.

Whether Starr is a lovely man who is dedicated to public service or a somewhat officious one with a puritanical streak, there is no question that he works hard at what he does. He is "absolutely dedicated to whatever task he undertakes," says John Roberts, a Washington lawyer who also served as a deputy when Starr was solicitor general. "The hours he worked in the solicitor general's office were legendary. And he really gets into things. He would have volumes of records brought into his office – the sorts of things that people at that level don't usually get into."

Starr grew up in San Antonio, the son of a protestant minister who ran a conservative house. A friend says Starr didn't dance until his wife, Alice, persuaded him to give it a try.

After graduating from George Washington University and the law school at Duke University, he clerked for then-Supreme Court Chief Justice Warren Burger until 1977. Afterward, he joined the law firm of Gibson Dunn & Crutcher, where he worked with Ronald Reagan's friend William French Smith. When Reagan was elected president in 1980, Smith became attorney general and Starr followed him, quitting three weeks after being named the firm's youngest-ever partner and walking away from a six-figure salary.

Starr didn't walk in lock step. He was an early backer of Sandra Day O'Connor for a Supreme Court seat. In a case involving Bob Jones University, he argued against those in the Justice Department who wanted to abolish the policy of denying tax breaks to discriminatory schools. The administration nonetheless tried to reverse that policy – and failed. Ultimately, the effort was seen as a political misstep.

But even while serving at the top levels of Justice, Starr made no secret of his desire for a judgeship. In 1983, at the age of 37, he was appointed to the U.S. Court of Appeals for the D.C. Circuit, often considered the nation's second most powerful bench. And it seemed like a promising route to promotion: Three of the current nine Supremes previously served there.

The final polish on the resume came in 1989 when Bush asked him to become solicitor general, the government's top lawyer who argues cases before the Supreme Court. And, not incidentally, four solicitors had gone on to the high court.

But Starr was not to be the fifth. He pressed the administration's position in a variety of cases, but he also resisted on some – notably one in which he sided with government whistle-blowers. When Justice William Brennan's seat on the court came open, Starr's name was duly mentioned. But the job went to David Souter – a little-known jurist who was hard to attack on political grounds. Unlike Starr, he had never tangled with conservatives in the administration. Unlike Starr, he had a powerful patron in John Sununu, who was the White House chief of staff.

And unlike Starr, he had never had to argue before the Supreme Court against Roe v. Wade, which would have put his views on abortion squarely on the record. That alone would have made for a ferocious confirmation fight.

Not getting on the high court isn't exactly failing, as Starr's friends are quick to point out. "It's a sign of success and good fortune that he's been considered for the Supreme Court and he's not yet 50," says Olson. "It's like an athlete that might have come within a couple of seconds of breaking a world record. You don't call that failure."

Or at least most people wouldn't.

Split Decisions

During his years on the appeals court, Starr's rulings were unmistakably conservative. An affirmative-action plan imposed by the D.C. Fire Department? No. School prayer? Yes. But he showed genuine interest in the arguments that were made before him – even those advanced by liberals.

"He is plainly a Republican but not in my view a dyed-in-the-wool, Oliver North, Newt Gingrich kind of Republican," says Alan Morrison of the Public Citizen Litigation Group, a public-interest law firm. "There were times when we couldn't buy a vote on the D.C. Circuit and we could get his attention. He ruled in our favor from time to time, maybe not when he agreed with our position but when he thought the law compelled him to."

Morrison cites Starr's dissent to a ruling that the military could forbid a Jewish officer to wear a yarmulke. "Ken's opinion could have been written by the local ACLU office," Morrison says. Starr also came out with a strongly worded First Amendment ruling that favored The Washington Post in a major libel case.

Of course, that kind of praise doesn't enthrall conservatives. Tex Lezar, a former Justice Department colleague, says Starr's style may have hurt him. "Ken is instinctively a fair-minded person," he says. "He will accurately state your point of view and accurately state your opposing counsel's point of view. He sometimes seems like he's a little bit all over the map to some people."

Life in Litigation

Starr was heavily courted when he left the Justice Department after Bush lost the election. (Fiske had been one of the first to call to try to lure him to Davis Polk & Wardwell.) He chose Kirkland & Ellis, a giant Chicago-based firm, partly because of the firm's willingness to be flexible: At the time, Starr was contemplating a Senate run. But that plan was not ready for execution in 1994. "Ken had not been involved in politics. He had no chips to cash in," says one longtime colleague. "It would have been a nonstarter."

One of Starr's friends, ABC correspondent Tim O'Brien, says he couldn't see Starr in politics anyway. "I think he's too nice a guy," O'Brien says. "I think he can take it, but I don't know that he can dish it out."

That left corporate litigation. After almost two decades of handling big-stakes legal cases, friends say Starr found private practice surprisingly dull. "I think he got tired of flying across the country to hobnob with some vice president of some company so they'll send them the legal work," says a former colleague. "I bet he was just bored to tears."

Not that Starr took it easy. "If he had any problem at Kirkland & Ellis, it was trying to get into too many things at the same time," says Al Cortese, a former partner who left that firm in August. "That caused him to overwork himself and not to give as precise guidance to those he was working with as he could have. ... He was just too busy.... He would leave messages on your voice mail at 4 or 5 in the morning. He was virtually killing himself to keep up."

"He tried to do so many things," says another former colleague. "He had the responsibility of building his aspect of the practice. He had a guarantee {of income} for two years, but after that it was eat what you kill. He also took on a role on the firm's management committee and was sort of running the office in Washington. ... I was just getting the atmospherics that it was not going easily."

Ed Warren, a senior partner with Kirkland here, says Starr has shown phenomenal energy, but he acknowledges that private practice may require some adjustment. "If you ask me if I think it would be as much fun as being solicitor general, I would say no," Warren says. "Given {that}, I think he was both doing well and enjoying it reasonably well."

Which makes Starr's decision to take the Whitewater case curious to some. "Ken had just begun building {a practice}," says Olson. "It wasn't as though he needed a new exciting challenge. He was in the midst of a new exciting challenge."

However, Warren notes that since taking the appointment and shuttling to the independent counsel's offices in Little Rock, Ark., Starr has kept up his Kirkland practice to a surprising degree, working 70- and 80-hour weeks in the process. The law allows for this, though Fiske took a leave without pay, saying he wanted to "go flat-out."

One consequence has been the potential for the appearance of a conflict of interest.

Public Citizen's Morrison criticizes the role Starr's firm played in resolving the government's investigation into the safety of certain General Motors pickup trucks – a matter that was settled favorably for GM last month after the administration backed away from a recall threat. Morrison's firm represents individuals who have sued GM over the trucks at issue, and it has tried to upset the recent settlement.

"It just looked wrong to have lawyers at Kirkland & Ellis beating up on the Justice Department and asking for favors for their client at the same time one of their partners is investigating the president," Morrison says.

One might expect that kind of talk from a liberal, but private attorneys – even friends of Starr's – have expressed the same reservations. One points out that Paul Cappuccio, Starr's close associate, played a role in negotiating the GM agreement. Starr's partners respond that Starr himself was not involved in the settlement talks. And they observe that the firm is under no legal or ethical obligation to disqualify its attorneys in such matters.

The Work Begins

Within weeks of his appointment, Starr took a couple of trophies: plea bargains by Hubbell and Robert W. Palmer, an independent property appraiser who did work for Madison Guaranty Savings & Loan. But those cases were "ready to go" when Fiske left, says Rusty Hardin, a Houston attorney who was one of Fiske's top aides. Meanwhile, Hardin and almost everyone else who served on Fiske's staff have left, even though Starr tried to persuade some to stay.

From now on, it's all Starr. Despite the lack of experience, Shapiro says his former boss has the skills to handle a major prosecution. "He combines talent, integrity and conscientiousness that seem well suited for the kind of work he's doing," Shapiro says. "He'll make up any gaps pretty quickly."

Several observers say Starr has the most important qualification for the independent counsel's job: good judgment. They also point out that he has hired experienced prosecutors, and that one of the Fiske people who stayed, William Duffy, is running the Arkansas end of the investigation.

"It is a good legal staff he's got there. And he's picking up with a group of FBI agents that has been working on it continuously for over a year," says Hardin. "What's going to happen now is the natural progression that would be pursued by any good, independent prosecutor."

The investigation centers on Madison Guaranty, a failed Arkansas thrift with ties to President Clinton and Hillary Rodham Clinton and their Whitewater Development Corp. investment. In addition, Starr is investigating Bill Clinton's campaign fund-raising while he was governor and the activities of the Rose Law Firm, where Mrs. Clinton was a partner. Fiske was six months and $2 million into the inquiry when the judges declined to reappoint him.

And does any of this get Starr closer to the Supreme Court?

Lezar thinks Starr has put those dreams away. "I don't think Ken thinks about the Supreme Court anymore," he says. "I think his life has taken a different turn. If you have always wanted to be a certain thing and then you say it's not going to happen, you have to put it out of your mind forcefully. ... I had the sense that Ken reached that sense vis-a-vis the Supreme Court."

Warren says he asked Starr "all those questions" about why he took the independent counsel's job and got some simple answers. "The truth is, he has never gone wrong by accepting the call to public service," Warren says. "It's a combination of duty and the pleasure he gets from it."

There isn't much artifice to Starr, say those who know him. Obvious intelligence. Obvious doggedness. Obvious ambition. "As much as anyone in this town – and that's a qualification right there – I think he's relatively ingenuous," says Warren. "Are there others who are more so? Not many."

© Copyright 1995 The Washington Post Company

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