Starr Is Ready to Resign
Washington Post Staff Writer
Thursday, August 19, 1999; Page A1 Independent counsel Kenneth W. Starr has advised the judges who appointed him that he expects to resign within the next few months, and has suggested they begin considering how to replace him, sources said.
Starr also informed the judges that considerable work remains to be done in his investigation of Clinton administration scandals, including decisions on whether to proceed with possible indictments on matters so closely related to the White House that the inquiries could not be turned over to the Justice Department without raising a clear conflict of interest, the sources said.
Starr's intentions raise a complex and unprecedented legal dilemma because the statute governing the independent counsel process was allowed to lapse June 30 after Congress declined to reauthorized it. Whether the panel of three federal judges that appointed Starr has the power to name a new independent counsel to complete his investigation is not clear, and any decision could be subject to legal challenges from a variety of interested parties, said senior Justice Department officials who have examined the situation in recent days.
"By saying he intends to leave, Starr proposes to create a vacuum at a time when there is no clear legal procedure for filling it," said a senior attorney.
One possibility would be for the three-judge panel to name a new independent counsel in spite of questions about their legal authority to do so; another would be for Attorney General Janet Reno to name a special prosecutor who would be chosen from outside the Justice Department but who would operate under her supervision.
An unusual split in the three-judge panel became public yesterday when U.S. Court of Appeals Senior Judge Richard D. Cudahy dissented from his two colleagues on an otherwise routine order allowing Starr to proceed with his investigation. As required by law, the judges considered whether there were grounds to terminate Starr's mandate as independent counsel when his investigation marked its five-year anniversary earlier this month. The power to close down an independent counsel has never been exercised before and the special panel usually files a brief order noting that it has declined to exercise that power.
Cudahy, however, argued that given President Clinton's impeachment and subsequent acquittal by the Senate, "this is a natural and logical point for termination."
"An endless investigation, which the passivity of the majority invites, can serve no possible goal of justice and imposes needless burdens on the taxpayers," wrote Cudahy, who was appointed to the federal bench by President Jimmy Carter in 1979.
But the two other judges on the panel, U.S. Court of Appeals Judge David B. Sentelle and Senior Judge Peter T. Fay, overruled Cudahy, arguing that Starr "has been unusually productive" thus far and that his "assurance that his work is ongoing" was sufficient grounds to allow his investigation to continue.
Starr, in a statement yesterday, contended that Cudahy's opinion "reflects a fundamental misunderstanding of the breadth of this office's work."
This sharp difference of opinion among the judges on the value of Starr's ongoing work could lead to serious contention as they consider whether they have the authority to name a successor and, if so, who it might be.
Sentelle, a Reagan appointee who presides over the independent counsel panel, signaled his intentions by asking Starr to forward the resumes of his top deputies so that they could be considered as possible replacements, sources said. The contact between Starr and Sentelle was first reported Tuesday by ABC News.
In frequent public statements since the conclusion of Clinton's impeachment trial Starr has indicated his weariness with the independent counsel's job. As recently as last week, he said in an interview on NBC's "Today" that he missed the anonymity of normal life and looked forward to returning to his private law practice. Starr has not, however, publicly stated any intention to resign before the completion of his investigation.
But Starr was much more explicit in a conversation with Sentelle on Aug. 2, revealing that he expected to leave the independent counsel's job before the end of the year, despite the major pending prosecutorial decisions, sources said.
Starr did not advise Sentelle what areas of his investigation might still produce indictments, the sources said. In the past, Starr has stated publicly that he has completed his probe into the Whitewater land deal and other business dealings in Arkansas, and he has indicated that his inquiry into Clinton's role in the Monica S. Lewinsky sex and perjury scandal was concluded with the report he delivered to Congress last September.
In recent months, Starr has brought witnesses before grand juries on two matters: The firing of the White House travel office staff -- an episode in which first lady Hillary Rodham Clinton played a role, although she has consistently denied any wrongdoing -- and alleged efforts to discourage potential witnesses in the Lewinsky matter from cooperating with Starr's office.
Starr's office is also handling appeals stemming from the tax and bankruptcy fraud case it brought against former Arkansas governor Jim Guy Tucker (D).
Finally, Starr's office is required by law to write a final report on all the matters it has investigated over the past five years. Starr said recently that although he has begun work on the report, the only prediction he would make about when it would be finished was that it would be before the 2000 election.