Starr's Probe Slowing Down
Washington Post Staff Writer
Sunday, May 9, 1999; Page A2
He told interviewers he wished he were in a different job, and he told the Senate that his position ought to be abolished. Now, after being rejected by two juries in the past month, independent counsel Kenneth W. Starr seems to be getting what he said he wanted: By most accounts, his five-year investigation of President Clinton and assorted others seems to be winding down.
Starr may have wished for a more triumphant finale, but many agree that the only new prosecutions he can bring now would involve reaching down to indict minor characters in the scandals he has long probed or waiting until Clinton leaves office to bring criminal charges against his old nemesis. But both of these possibilities appear increasingly unlikely, according to legal experts.
"His responsibility in terms of active prosecutions is completed, and it would be prudent for him to observe that it is finished," said Douglas W. Kmiec, a law professor at Pepperdine University. "He has indicated that he is exhausted by the entire process, and it is time he get back to his law practice."
Starr gave a glimpse of his state of mind in media interviews last month when he joked repeatedly that turning down the job as dean of Pepperdine's law school two years ago might have been the wrong choice. And Starr stated flatly that he would rather be a judge or appeals court advocate than a prosecutor.
Since he was appointed independent counsel in August 1994, Starr has produced a lengthy and controversial record. His only courtroom convictions came three years ago when James B. and Susan McDougal, former business associates of the Clintons, and Jim Guy Tucker, then governor of Arkansas, were convicted on charges stemming from the original Whitewater investigation.
In the other major criminal proceeding Starr has conducted, Webster L. Hubbell, the former associate attorney general and longtime Clinton friend, pleaded guilty in 1995 to wire fraud and tax evasion charges. In addition, Starr has obtained 11 guilty pleas from minor figures in his investigations, but failed to win convictions against two Arkansas bankers accused of breaking the law to contribute to Clinton's campaign coffers.
Finally, Starr has investigated, at the request of the Justice Department, the suicide of Vincent Foster, the White House travel office firings and the transfer of FBI files to the White House--without bringing any indictments.
Having spent more than $40 million thus far, Starr seems unlikely to simply up and quit. But in deciding when and how to bring his mandate to a close, Starr faces choices that could still color his legacy, deeply affect the lives of individuals who have been his targets and change the future of the independent counsel law.
First, Starr must decide what to do about two women he unsuccessfully prosecuted for allegedly failing to tell him the full truth about Clinton. In both cases, defense attorneys argued, apparently with some success, that Starr was guilty of excessive zeal and even misconduct.
Susan McDougal was acquitted April 12 of obstruction of justice for refusing to testify before a Starr grand jury, and the jury in Little Rock deadlocked on two contempt charges. On Friday, a jury in Alexandria deadlocked on all four charges against Julie Hiatt Steele for allegedly lying to Starr's investigators about an alleged sexual incident in the Oval Office.
Starr has the option to retry the unresolved charges against McDougal and Steele, but he will undoubtedly be accused of piling on if he brings the two women back into court.
"No traditional prosecutor would have brought the initial trials, let alone consider retrials," said Stephen Gillers, a professor of legal ethics at New York University law school. "Whether or not he believed he had proof beyond a reasonable doubt that they were guilty, neither McDougal nor Steele was important enough to justify the prosecutions."
A traditional prosecutor, he argued, probably would have closed the files after taking on the biggest target available, as Starr did Sept. 9 when he sent Congress a report referring 11 possible impeachment charges against President Clinton. But even after the Senate acquitted Clinton on charges of perjury and obstruction of justice, Starr finds himself going after secondary figures, who in some cases he has already put in jail once before.
Hubbell will have to face off with Starr again when he goes to trial this summer on fraud charges for allegedly concealing legal work on a land development deal. In addition, Hubbell faces another possible trial this fall on tax evasion charges.
Aside from setting a course in these individual cases, Starr also must decide what he will do when the independent counsel law expires June 30.
Although it may reauthorize or revise the statute later, Congress now appears likely to let the law lapse for at least several months. Starr and any other independent counsels already appointed would continue to operate but no new investigations could be launched.
In congressional testimony last month, Starr said the independent counsel process should be allowed to die because it was "constitutionally dubious" and created an overly politicized atmosphere. Instead, Starr argued, the attorney general should assume authority to prosecute all high-level corruption with the option to name an outside special prosecutor when faced with a conflict of interest.
At the time of his testimony, Starr cryptically raised the possibility that he would hand off some pending matters to the Justice Department when the law expires. Although the law does not specifically envision such a process, it does not prevent it either. Some observers believe Starr might use the device as a way of greatly narrowing his mandate or even bringing it quickly to closure after the Hubbell trials.
"Starr must now be weighing his commitment to completing the job against his conclusion that the job was improperly allocated to an institution that has proved unworkable," said Kmiec. "That must be a very close question."
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