Starr to Oppose Counsel Statute
Washington Post Staff Writers
Wednesday, April 14, 1999; Page A1
Independent counsel Kenneth W. Starr opposes renewing the law that gave him the authority to investigate President Clinton and plans to tell a congressional committee today that the independent counsel process is "constitutionally dubious" and leads to overly politicized inquiries, according to an advance copy of his testimony.
Starr is scheduled to appear this morning before the Senate Governmental Affairs Committee, which is considering whether Congress should renew the statute that authorizes the creation of independent counsels. In the absence of congressional action, the law, which has a built-in, five-year lifespan, will lapse June 30.
"In light of all the factors, I respectfully recommend that the statute not be reenacted," according to Starr's prepared remarks, which were submitted to the committee yesterday. A copy of the testimony was obtained by The Washington Post.
Starr took over the Whitewater investigation into Clinton's Arkansas land dealings in 1994 and was subsequently authorized to investigate other matters including alleged perjury and obstruction of justice in an effort to hide Clinton's affair with former White House intern Monica S. Lewinsky. The investigation, one of the costliest in history at $46 million through last year, has produced more than a dozen convictions of Arkansas figures, including former governor Jim Guy Tucker (D).
But Starr's past ties to conservative groups highly critical of Clinton and complaints that Starr's staff used abusive and unfair tactics with witnesses helped revive debate over the wisdom of extending the independent counsel law. The Justice Department is considering whether those complaints justify Starr's removal.
In his prepared testimony, Starr complained that his investigation of Clinton had been subject to relentless political attacks that undermined the credibility of his efforts, but he concluded that any outside figure appointed to investigate a president would suffer such assaults. "If politicization and the loss of public confidence are inevitable, then we should leave the full responsibility where our laws and traditions place it, on the attorney general," he said.
Striking a defensive note, Starr reflected on the criticism of his handling of the Lewinsky inquiry and said: "A duly authorized federal law enforcement investigation came to be characterized as yet another political game. Law became politics by other means."
In opposing the renewal of the statute, Starr joined the Justice Department and congressional leaders of both parties who have concluded that the law is well-intentioned but fatally flawed. Starr has consistently found fault with the law since he worked in President Ronald Reagan's Justice Department nearly 20 years ago, even voting to strike it down as unconstitutional in 1988 when he served on the D.C. Circuit Court of Appeals.
Finding the law "structurally unsound" and potentially unconstitutional, Starr said it "tries to cram a fourth branch of government into our three-branch system" -- a stand-alone independent prosecutor appointed by a special panel of federal judges. Relying on an attorney general to uphold the law is more in keeping with the Constitution, he argues.
With no plans underway for Congress to vote on renewal before the expiration date, it seems increasingly likely that the law will be allowed to lapse while debate continues on whether the widely acknowledged problems with the statute can be fixed or whether the authority to investigate allegations of misconduct by top executive branch officials should revert to the Justice Department. The department handled such probes before the enactment of the independent counsel law in 1978 and Attorney General Janet Reno is seeking to reclaim that authority.
Responding to inquiries from the House Judiciary Committee about how it would handle the kinds of conflicts of interest that now would provoke appointment of an independent counsel, the Justice Department said yesterday that Reno would invoke long-established powers to name a special prosecutor -- an outside figure charged with conducting a specific investigation but still answering directly to the Justice Department. Most important, the attorney general can ask to review a special prosecutor's decisions on bringing criminal charges while an independent counsel is under no similar supervision.
Most of Starr's prepared remarks are a historical and legal review of the statue, but he also draws on his own experience, particularly during last year's investigation of the White House sex scandal, to reach the conclusion that the independent counsel process is "a worthwhile experiment" whose time has passed.
Launched as a post-Watergate reform in 1978, the independent counsel law was supposed to ensure the public that there would be unbiased investigations when a president or other top executive branch officials were accused of wrongdoing. Starr concludes that the Lewinsky investigation shows that the law has become self-defeating. "The statutory mechanism intended to enhance confidence in law enforcement thus had the effect of weakening it," he said.
Citing the controversies that swirled around others in his position, he said, "history thus teaches that outside prosecutors investigating presidents are likely to be scrutinized, impeded and sometimes fired." Reflecting on the attacks aimed at his investigations of Clinton, Starr concludes "I think we have seen something more than the norm."
The law requires an independent counsel to refer possible criminal violations by a sitting president to Congress where, Starr argued, the proceedings are predictably partisan. By referring perjury and obstruction-of-justice charges against Clinton to Congress, Starr concluded, "we were invariably but wrongly seen as part of the political proceeding of impeachment."
Based on Starr's report to Congress, the House impeached Clinton but the Senate acquitted him of perjury and obstruction of justice charges in February.
Not of all of Starr's ruminations on the past year's drama are quite so abstract. He took time to criticize the "carnival-like atmosphere" that prevailed outside the federal courthouse while the Lewinsky grand jury was hearing testimony.
"Some grand jury witnesses cowered in anguish as they were aggressively pursued by TV camerad," he said. "Other witnesses used the cameras for their own ends, including to disseminate falsehoods about what had transpired in the grand jury room."
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