By Roberto Suro
Democrats have charged this week that Starr could not impartially investigate whether Lewinsky was being pressured to deny her sexual relationship with President Clinton as a witness in the Paula Jones sexual harassment case because four years earlier Starr had given legal advice to Jones's lawyers.
Rep. Barney Frank (D-Mass.), a member of the House Judiciary Committee that is considering Starr's charges that Clinton committed perjury and obstructed justice in the Jones case, said Starr "never should have been appointed" to investigate the Lewinsky matter because of his contacts with the Jones lawyers. Sen. Richard J. Durbin (D-Ill.) called for an investigation of why Starr "failed to disclose to the attorney general" his involvement in the Jones case.
"It just did not occur that it was relevant," Starr spokesman Charles G. Bakaly III said yesterday. Bakaly noted that Starr was still a private citizen in 1994 when he publicly supported some of the key legal contentions behind the Jones lawsuit, and that it was widely reported that Starr had considered filing a friend-of-the-court brief to back Jones's successful Supreme Court argument that a sitting president could be the subject of a civil lawsuit.
But while Starr's public positions were known within the Justice Department, it is less clear whether Reno and other key officials involved in two tense days of talks leading to the expanded mandate last January were aware that Jones's lawyers had consulted with Starr as many as a half-dozen times in mid-1994.
Those discussions, which first surfaced in the news media last January, became the subject of partisan exchanges in the ongoing impeachment debate after a report by National Public Radio this week focused new attention on the matter.
Interviews with experts on legal ethics yesterday revealed no clear consensus on whether Starr's 1994 involvement with the Jones case should have precluded his 1998 investigation of the Lewinsky matter.
"This is not an area where there are very explicit rules, but it does not appear to me that Starr was tainted," said Lawrence J. Fox, a Philadelphia attorney who is past chairman of the American Bar Association's ethics committee.
Arguing the contrary view, Monroe H. Freedman, a professor of legal ethics at the Hofstra University law school, said, "it does not matter whether there are specific rules or policies on this behavior because the whole point of the independent counsel process is to avoid any appearance of impropriety and there is certainly at least that appearance in this case."
Whatever scholars eventually conclude, Starr's past behavior was not an issue last Jan. 15-16, when Reno had to decide how to handle Starr's claims that he had information that Clinton allies were in the process of unlawfully obstructing the Jones case at that very moment.
When Starr's chief deputy, Jackie M. Bennett Jr., first told top Justice Department officials the Lewinsky story on the evening of Jan. 15, he emphasized the belief that events were moving quickly, officials familiar with the talks said. Based on what was then incomplete information, Bennett said that Vernon E. Jordan Jr., a close friend of Clinton's, was doing favors for Lewinsky to keep her from testifying truthfully in the Jones case, and that Lewinsky herself was trying to persuade Linda R. Tripp, her friend turned Starr informant, to also keep quiet.
There was a clear sense conveyed that evidence was about to be lost and witnesses tainted, the officials said. Moreover, Bennett told Justice officials, Newsweek reporter Michael Isikoff was asking questions and seemed to know a great deal about the matter. A news report at this sensitive stage, Bennett said, could blow any chance of a quick and successful investigation.
Officials said Bennett's sense of urgency influenced Justice Department deliberations that night on how to proceed, as all of the available options other than allowing Starr to press forward would inevitably produce delays. Because of the president's alleged involvement, it seemed clear the matter eventually would go to an independent counsel rather than be handled within the department, even if Starr's request were not immediately granted.
Reno could have sought the appointment of another outside prosecutor, but that could have stalled the probe for months -- by which time the Jones suit might have been resolved. The same would have been true of asking for the matter to be referred to either of the other two independent counsel investigations then underway -- probes of former HUD secretary Henry G. Cisneros and of former agriculture secretary Mike Espy.
Rather than risk blowing a potentially significant public integrity investigation, Reno quickly acceded to Starr's request. The idea of probing Starr's connections to the Jones case was not seriously considered because what was publicly known did not suggest obvious problems, sources familiar with the deliberations said.
Justice Department rules state that a conflict of interests exists when a federal prosecutor has a "personal interest" in the outcome of the matter in question, which usually means a financial stake, or a "professional relationship" with one of the parties or attorneys. According to an opinion earlier this year by the ABA ethics committee, consultations of the sort that occurred between Starr and the Jones lawyers do not constitute a professional relationship.
"There is no conflict of interest" said C. Boyden Gray, White House counsel in the Bush administration. "Starr had already been publicly criticized for the very relationship he is not accused of not disclosing."
Freedman, however, said, "an independent counsel is not like any ordinary prosecutor because the whole reason for the office is to ensure impartiality."
© Copyright The Washington Post Company