Starr's Ethics Adviser Quits Over Testimony
Washington Post Staff Writers
Saturday, November 21, 1998; Page A1
Several times during his four-year, $400-an-hour tenure as independent counsel Kenneth W. Starr's ethics adviser, Samuel Dash threatened to quit. Yesterday, he actually did it, and at perhaps the worst possible moment for Starr.
His resignation, undercutting Starr's 12-hour performance Thursday before the House Judiciary Committee, was greeted with glee by Democrats who want to make Starr not President Clinton the issue as the committee considers impeachment, and was also seen as an act of stunning betrayal by Starr's staff.
In a stinging two-page letter to Starr, Dash, a Georgetown University law professor and former chief counsel of the Senate Watergate Committee, said he had "no other choice but to resign" because of the independent counsel's "abuse of your office."
He said Starr's decision to appear before the Judiciary Committee and to take the role of "aggressive advocate" of impeaching the president exceeded his mandate under the independent counsel law to simply report to Congress on any impeachable offenses he discovered.
"By your willingness to serve in this improper role you have seriously harmed the public confidence in the independence and objectivity of your office," Dash said.
Dash's announcement played directly into the hands of Democrats, who sought to make Starr and his conduct the focus of his marathon testimony Thursday. But Dash said in an interview that he was forced to quit when Starr chose to disregard his advice.
"He decided to disagree with me," said Dash. "It became a matter of principle."
Starr himself responded mildly. "Sam Dash is a man of principle, and I love Sam Dash," he told reporters. Starr said he had "the most profound respect" for Dash's differing assessment of his role in what Starr described as "this area of uncharted waters."
"I did not ask for the invitation" to appear, Starr said. "But I certainly readily accepted it and, in my judgment, I think it was proper for me to do what I did. I think I had a duty to do what I did."
In a letter to Dash, Starr said he would have done more harm to public confidence in his investigation by refusing to testify. "A refusal to appear would have suggested that we have something to hide, or that we are unwilling to defend and stand by the written referral," he said.
The resignation of perhaps the best lawyer in Starr's office, hired to advise him on sensitive issues, gives the White House and congressional Democrats their most powerful ammunition yet to attack Starr's integrity and judgment.
"It's a fairly devastating indictment of Mr. Starr that his ethics adviser, whom he has trotted out at several critical junctures of his investigation, has resigned for ethics reasons," said Democratic committee spokesman Jim Jordan.
Rep. Martin T. Meehan (D-Mass.), who had quoted some of Dash's previous critical comments about Starr in questioning the independent counsel Thursday, called Dash's action yesterday "right on target."
At the White House, officials resolved not to comment because they did not want to appear to be gloating. As one said, "Starr's ethics adviser resigned. That's not spin. There's no need to spin that. That's just fact."
Republicans jumped to Starr's defense. House Judiciary Committee Chairman Henry J. Hyde (R-Ill.) emphasized that Starr appeared at the committee's request, and "at the public urging of committee Democrats," and would have been subpoenaed had he declined to testify voluntarily.
"After four years of relentless abuse and unanswered accusations, I think the public was owed an explanation by the independent counsel to provide some balance to this highly controversial matter," Hyde added. "Judge Starr rightly made it clear that while he stood behind his referral, the question of impeachment is left solely to the discretion of the committee."
Rep. Lindsey Graham (R-S.C.) did not take issue with Dash's judgment on what he termed "an academic dispute about the role of the independent counsel" but said it was irrelevant to how Congress should proceed.
"That's not changing the facts," Graham said. "That may change the politics."
During his tenure at the independent counsel's office, Dash has been immersed in many of the office's legal and investigative issues, often taking relatively hawkish prosecutorial positions, lawyers knowledgeable about the office said.
Most recently he insisted on stiffer language in one portion of the impeachment referral. In fact, the lawyers said, Dash threatened to quit over that issue, one of a number of threatened resignations on his part.
On Sept. 9, as the referral was virtually on its way out the door to Congress, Dash demanded that the word "unlawfully" be included in the referral's assertion that "the president repeatedly and unlawfully invoked the executive privilege to conceal evidence of his personal misconduct from the grand jury."
Lawyers who worked on the report objected, but Dash prevailed with Starr. "People were furious," said one Starr aide.
Yesterday, they were even angrier. Several lawyers in the office characterized Dash's resignation as a grandstanding move. "It was an act of betrayal," said one former Starr lawyer. "I don't know how he can look himself in the mirror."
Despite the timing, Dash said in an interview yesterday that his intention was not to draw attention to himself.
"I don't want to do this for publicity," he said, adding that he had released his letter but was declining most requests to discuss it.
In his resignation letter, Dash said Starr's office had been the victim of "many unfounded and misinformed attacks." In the interview, he said he also "agreed it was important for him to defend the conduct of his office."
Former independent counsels and academic experts on the independent counsel statute and impeachment proceedings were divided over Dash's actions and the strong, public language he used.
Some disagreed entirely with Dash's assessment of the situation, saying Starr had little choice but to respond to a reasonable congressional inquiry. Some said they sympathized with Dash's concerns about Starr taking an advocacy position, but did not see how Starr's testimony differed significantly from his referral. And others said that Starr, in appearing before Congress, had gone too far and that Dash was right to call him on it.
"I don't think Starr had any choice" but to testify, said former independent counsel Lawrence E. Walsh. He said Starr's report "was damaged by his excessive recitation of the sexual details of the episodes, and yesterday was the first time that he really publicly spoke like a lawyer and analyzed his view of the offense."
"The letter is bizarre and perplexing," said former independent counsel Joseph E. diGenova. "What Starr said yesterday is no different from what's in the report that Mr. Dash worked on."
Georgetown University law professor Julie O'Sullivan, who worked under Starr's predecessor, special counsel Robert B. Fiske, and briefly for Starr, said of Dash, "I frankly agree with him. . . . Appearing before the committee and discussing expansively his position in favor of a conclusion that these are impeachable offenses really is problematic and injects him too much into the impeachment process."
Wake Forest political science professor Katy Harriger, an expert on independent counsels, also supported Dash. Starr was Republicans' "Exhibit A for impeachment," she said. "That is more of an advocacy role than sending a written report."
But Columbia University law professor Gerard Lynch said that while it might have been more "prudent" for Starr to decline to appear, "It's a little puzzling that this is the issue where he [Dash] draws the line."
New York University legal ethics expert Stephen Gillers agreed, and said he was also troubled by Dash's public blast at Starr. "As a lawyer for the investigation, it is not proper for him to publicly criticize his own client," Gillers said. "If he felt the need to withdraw he should have withdrawn quietly."
Staff writers Peter Baker and Guy Gugliotta contributed to this report.
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