Starr Again 'In the Middle' of Controversy
Washington Post Staff Writer
Sunday, January 24, 1999; Page A17
Four long months ago, when independent counsel Kenneth W. Starr delivered 18 boxes of documents about President Clinton and Monica S. Lewinsky to the House Judiciary Committee, his spokesman stood on the Capitol plaza and pronounced Starr's work on impeachment complete.
"The office has fulfilled its duty under the law," said Charles G. Bakaly III. "Responsibility for the information we have transmitted today and for any further action now lies with Congress as provided by the Constitution."
But Starr has hardly faded quietly from the scene. The man who had once hoped to be happily teaching law in Malibu has been a constant, if mostly invisible, presence in the impeachment proceedings.
Yesterday he was back, front and center, as controversial as ever after having secured an emergency court ruling that Lewinsky had to submit to questioning by House "managers" – or by Starr's lawyers acting for them – or risk prosecution.
Throughout the day, the House prosecutors and the White House battled over whether the prosecutors had overstepped their bounds in trying to debrief Lewinsky – and whether Starr's office had transgressed by riding into the case on the side of the House.
Starr's office portrayed itself as a reluctant recruit in the congressional warfare, an unhappy "intermediary," as Bakaly put it, caught "in the middle" between Lewinsky and the House and bashed for complying with what it views as its continuing duty under the independent counsel law to help Congress with the proceedings.
At times during the three months of impeachment debate, first in the House and now in the Senate, the focus has been as much on Starr and his actions as it has been on Clinton. During the House debate in November and December, the White House and its Democratic allies frequently invoked the independent counsel and what they assailed as his excesses as a basis for questioning his conclusions and dispensing with the proceedings.
House Judiciary Committee Republicans summoned Starr as their chief witness to explain exactly why Clinton should be impeached – and Starr's ethics adviser, Georgetown University law professor Samuel Dash, resigned in protest the next day, saying that Starr's role as "aggressive advocate" for impeachment amounted to "abuse of your office."
As the drama shifted to the Senate, Starr seemed to have receded somewhat into the background, with the White House lawyers focusing their criticism on the House managers rather than the independent counsel. Their intermittent references to Starr came for the surprising purpose of arguinmg that his impeachment referral appeared a model of lawyerly restraint compared to what they said was the no-holds-barred House approach.
Yesterday Starr found himself in a more accustomed position: the focus of White House wrath.
It was a moment foreseen in some ways six months earlier, when Starr's prosecutors inked their immunity deal with Lewinsky. With impeachment a possibility, the plea agreement anticipated that Lewinsky's testimony might be needed not only by Starr's prosecutors, but by congressional judges and jurors.
In exchange for complete immunity from prosecution, Lewinsky promised not only to "testify truthfully" before any congressional proceedings, but to be "fully debriefed" about her role in less formal interviews with the Office of Independent Counsel "and representatives of any other institutions as the OIC may require." The agreement also bars Lewinsky from speaking with Clinton's lawyers without obtaining the blessing of Starr's office, but, Bakaly said yesterday, "If the White House asked us to be allowed to interview her, we would honor that request."
The legal and political debate yesterday concerned whether it was proper for Starr's prosecutors to enter the fray on the side of the House managers after Lewinsky balked at their request for a voluntary interview. At that point, Starr went to court to enforce the agreement as he interpreted it. The independent counsel's office was not acting as an "agent" for the House managers, Starr said in court papers, but rather complying with the independent counsel statute itself. Starr submitted his impeachment referral to Congress under a provision of the law that requires the independent counsel to advise the House "of any substantial and credible information . . . that may constitute grounds for an impeachment."
That provision, Starr argued yesterday, inextricably involved his office in congressional business when – as he put it in court papers – it imposed a "continuing duty to provide the House with information relating to impeachment."
"We were duty-bound to assist the House managers," Starr said.
But Starr's court papers betrayed no discomfort with taking on the role of advocate for the House managers. Indeed, the brief acknowledged that Lewinsky "has the right" to have her debriefing conducted by the independent counsel's office, and quickly volunteered, "The OIC, of course, is fully willing to conduct these debriefings, if Ms. Lewinsky so desires."
And while the Lewinsky immunity agreement can clearly be read to permit Starr's office to require whatever debriefings it wants, the agreement does not compel Starr to comply with the managers' request that they be allowed to interview her at this point.
As the White House argued yesterday, the Senate has not yet authorized the taking of any depositions – much less allowing Lewinsky or other witnesses to appear on the Senate floor. So while it was a natural instinct on the part of the House managers to get some sense of perhaps their most critical potential witness in advance, it was a different matter for Starr's office to lend its prosecutorial might to that interview request.
Most lawyers who want to have "a friendly little chat" with a prospective witness, said White House counsel Charles F.C. Ruff, do not have the opportunity to avail themselves of bringing in a prosecutor to threaten the witness with jail if she chooses not to talk.
St. John's University law professor John Q. Barrett said he was troubled by Starr's involvement on behalf of the prosecution now that the proceedings have shifted to a Senate trial. "He's a spectator to an adversary proceeding now . . . and he's helping one side and giving them a first clear shot at this witness," he said. "I think he has the power to do it but I do have some questions about whether it's proper for him to enlist on the House side."
But a Starr ally argued that the independent counsel was in an impossible position.
If you don't do it, you can be viewed by the Republicans as obstructing the proceedings for no good reason," the ally said. "If you do do it, you're viewed as assisting them. So either way you're viewed as taking one side or the other. That's a real tough situation, and you really are getting into the impeachment process more than you'd like."
© Copyright 1999 The Washington Post Company