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Soon to Be Jobless, Starr Has Winning Appeal

Independent counsel Kenneth W. Starr (AP)  

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  • By David Segal
    Washington Post Staff Writer
    Monday, August 30, 1999; Page WB13

    That peculiar accent. That strobelike smile. There's no mistaking him.

    The nation's highest-profile lawyer, Kenneth W. Starr, won't need "work wanted" ads when he finally bolts the independent counsel's office and returns to the law firm where he once toiled as a relatively anonymous appellate lawyer. The move, which associates say could come as soon as October, will inevitably generate its own publicity, not to mention a fresh round of editorials.

    But as the 52-year-old Starr prepares to rejoin his former colleagues at Kirkland & Ellis's 15th Street NW office in the District, there is one small matter of suspense: Who is going to hire this guy?

    Put another way, can a lawyer whose poll ratings once hovered somewhere between those of Newt Gingrich and Saddam Hussein reclaim his glory days as a Washington rainmaker?

    The question is bouncing around the top levels of the capital's legal establishment. The consensus: Starr will prosper. In fact, some lawyers, professors and legal consultants believe that his handling of the Monica Lewinsky scandal enhanced his marketability. From a public relations standpoint, Starr's tactics proved a howling catastrophe, but he has consistently won where it counts -- in court.

    "The fact is that there are a relatively small number of prominent companies and individuals who form the client base for someone of Starr's stature, and they won't be dissuaded at all," said Stephen Gillers of New York University Law School. "If anything, his reputation is enhanced by his repeated victories during the scandal, even as he was maligned in the press."

    This is not a unanimous verdict. Some lawyers, most of them likely rivals, contend that Starr is damaged goods. Corporations, they predicted, will be too jittery to retain the former leader of a much-criticized probe, an investigation that could well have enraged many of the 300 or so Clinton appointees on the federal bench. Why hire a lightning rod when scores of perfectly uncontroversial lawyers are available?

    "He may rub some judge the wrong way," said a Washington lawyer who, like many questioning Starr's moneymaking potential, requested anonymity. "No company would want to come out of the box with a bad reputation or a bad name and nowadays, you can't be sure how anybody will react to Ken Starr."

    Certainly, some companies will steer clear. John McGuckin, general counsel of Union Bank of California, put it this way: "I'd be worried that if I proposed hiring Starr, a lot of eyebrows in the room would get raised. Half the reactions would be positive, half negative, but most general counsels don't want to have to defend a controversial choice."

    It's hard to remember now, but long before Lewinsky shimmied into that blue Gap dress, Starr was a luminary in Washington's appellate bar, one of a handful of go-to lawyers hired by Fortune 500 companies to turn around cases already lost in a lower court.

    Starr, the deeply religious son of a San Antonio minister, came to this game with sterling credentials. Even the odder elements of Starr's personal biography -- he once claimed that shining his shoes was his high school hobby -- have hardly obscured a 24-karat resume.

    He served as solicitor general during the Bush administration, a job that made him the nation's arguer-in-chief before the U.S. Supreme Court. Before that, he sat on the U.S. Court of Appeals for the District of Columbia, one of the nation's most prestigious courts.

    Kirkland officials, an extremely tight-lipped bunch, declined to comment about Starr's imminent return, as did Starr himself. His intentions, though, aren't a mystery. Two weeks ago word leaked through associates that he would head back to Kirkland, perhaps as soon as October, before his inquiry is completed. The investigation of Clinton, his wife and their associates in the expanded Whitewater probe is entering its sixth year at a cost of more than $40 million.

    To Kirkland, the starchy Chicago-based firm known for hardball litigation and right-leaning politics, Starr was a lucrative brand-name attraction. Appellate lawyers are typically loss leaders for firms, but when they're successful they lure new business and produce billable hours for more profitable practice areas. Starr's notoriety and talent drew blue-chip companies such as Bell Atlantic Corp., now a regular client.

    Equally as important, Starr proved an unbeatable recruiter of talent. During his years at the firm, Supreme Court and appeals court clerks regularly trickled into Kirkland, all eager to work under him. Many of those lawyers, including Christopher Landau, Brett Kavanaugh, Paul Clement, Ted Ullyot, Paul Cappuccio and Steve Bradbury, are considered standouts.

    Though many of these lawyers are unabashed conservatives, Starr's reputation as a Puritan with a Republican agenda is relatively new. On the bench, he was known as a mushy, right-of-center moderate -- his judicial opinions were balanced enough to irritate ideologues on the far side of either end of the political spectrum. Back when a second term for President George Bush seemed possible, allies floated Starr's name as a possible Supreme Court nominee. But the fire-breathers in the Republican Party, fed up with the centrism of Justices David H. Souter and Anthony M. Kennedy, were against the idea.

    "You could argue that he lost it during the heat of the impeachment inquiry, but for years he had an overall reputation as a thoughtful, scholarly jurist," said Sheldon Goldman, a political science professor at the University of Massachusetts at Amherst. "You couldn't call him an activist the way you might call [Justice Antonin] Scalia or [Chief Justice William H.] Rehnquist or [Justice Clarence] Thomas activists."

    As a former colleague said: "Remember, this is the guy that Senate Democrats appointed to read Bob Packwood's diary," referring to a congressional ethics inquiry into the former senator from Oregon.

    Selling a kinder, milquetoastier Starr might be tough if his target audience were the public. But as an appellate lawyer, Starr won't plead before juries. His audience will be appeals court panels, and his prospective clientele will be deep-pocketed companies in a pickle. That crowd doesn't watch poll numbers; it watches the courts, where Starr has put together an impressive run.

    Throughout his Whitewater investigation, Starr won every one of the arguments he made before an appeals court: on whether there is Secret Service privilege, on the convictions of former Arkansas governor Jim Guy Tucker and onetime Whitewater co-investors James and Susan McDougal, on whether there is a government attorney-client privilege in criminal proceedings (there is not), and the list goes on. Yes, the Supreme Court rejected his office's contention that in criminal proceedings, the attorney-client privilege dies with the client, but Starr didn't make that argument. One of his lieutenants did. And a jury did hang in the Julie Hiatt Steele obstruction of justice trial, but Starr didn't argue that one either.

    Perhaps, as some have suggested, Starr is simply gifted at figuring out which causes are hopeless and handing them off to underlings. If so, the gift served him well in the private sector, too, where Starr has successfully moonlighted while serving as independent counsel. Last year, for example, he persuaded the Fourth Circuit Court of Appeals to toss out a $390 million judgment against Meineke Discount Muffler Shops Inc. And on behalf of Hughes Aircraft Co., he triumphed in a long-running patent fight against the federal government.

    Eventually, Starr took a leave of absence from Kirkland & Ellis, prompted by critics who wondered why he was enriching himself to the tune of about $1 million a year instead of wrapping up his investigation. Some in the firm were happy to see him go, at least temporarily. Among associates, there have been murmurs that Kirkland lawyers were getting razzed by judges. Sources, though, say that even when the furor about Starr peaked, there was no question that he would be welcomed back. He's a hero and mentor to many in the firm. Others worried that abandoning Starr would send the wrong message to potential clients -- that Kirkland turns tail when the heat is on.

    Keeping Starr also could turn out to be a savvy business decision. Of the 860 judges serving on the federal bench, 324 were appointed by Clinton, according to the Justice Department. That sounds discouraging; Starr will undoubtedly need the forbearance of a group that owes its robes to the guy he tried to chase from the Oval Office.

    Still, many of the judges Starr will face were appointed by Presidents Ronald Reagan and George Bush. And anyway, "Once you get into the federal courts and the Supreme Court level, the vast majority of cases are decided based on quality of evidence and arguments, regardless of political considerations," said Bruce Ennis, an appellate lawyer at Jenner

    Moreover, Clinton appointees are considered a fairly nonpartisan crowd. As a matter of policy, the Justice Department does not inquire about the political affiliations of the judges it vets. Hassles are more likely from Carter-era holdovers, Goldman said.

    Helping his cause, Starr is regarded as a schmoozer extraordinaire and he's well known -- and largely well liked -- by many of the judges he'll need to sway. As an appellate lawyer, Starr made a habit of mastering his topic and then mastering judicial opinions on that topic. A lawyer who worked with him in his pre-independent counsel days said Starr predicted with uncanny accuracy exactly which arguments would fly with which judges.

    Some in Washington's legal scene are betting that Starr will be a pariah in the corporate world. If he's busy at all, they say, it'll be courtesy of the right-wing institutions and causes that have embraced him. Or perhaps, another lawyers suggested, he'll rack up fees running internal investigations for companies, a growth industry these days.

    But as they say in the appellate world, these are the opinions of a dissenting minority. Most experts anticipate that Starr's transition to the post-scandal world will be nearly as smooth as Monica Lewinsky's -- she parlayed her bit part in history into a successful tell-all book and television cameos. The impeachment might go down as a wrenching national trauma, but for its participants it could out to be a good career move.

    "Political celebrities tend to be a mixed bag when it comes to rainmaking," said Joel Henning, a legal consultant at Hildebrandt Inc. "But Ken Starr will be one of the few who perform."

    © 1999 The Washington Post Company

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