The Justice Department has put its misconduct investigation of independent counsel Kenneth W. Starr on hold while waiting to see whether Starr resigns or significantly curtails his activities after the independent counsel law expires on June 30, according to sources familiar with the deliberations.
If Starr were no longer serving as an active prosecutor, the Justice Department could simply forgo the inquiry into Starr's handling of the Monica S. Lewinsky matter. Some senior department officials would welcome that outcome as a chance to avoid a potentially contentious and politicized proceeding, the sources said.
Starr is known to be weighing advice that he give up his independent counsel mandate and he has openly stated his desire to return to private life, but he has not given the Justice Department any definitive signals as to his intentions, the sources said. Attorney General Janet Reno has, in effect, decided to let Starr make the next move, the sources said.
The administrative procedures for a misconduct investigation cannot be applied to a prosecutor who has left government. Most of Starr's key deputies during the Lewinsky investigation have already moved on to private practice, and if Starr were to resign, the Justice Department would no longer have jurisdiction to conduct a disciplinary proceeding. The situation would be cloudier if Starr announced that he would not gather any more information or seek further indictments but would remain in office only to produce reports to Congress on matters already investigated.
Starr has offered no visible signs that he is preparing to close up shop and has recently joked with some associates that he still expects to be an independent counsel for some time, according to sources.
The Justice Department notified Starr last November that it was assessing allegations raised primarily by Democrats in Congress that his office improperly coerced Lewinsky and other witnesses, leaked grand jury material damaging to President Clinton and failed to disclose potential conflicts of interest to Reno when seeking her permission to launch the Lewinsky inquiry.
After Clinton's Feb. 12 Senate acquittal on impeachment charges provoked by Starr's investigation, the Justice Department stepped up consideration of an inquiry into possible misconduct. Both in written correspondence and in a mid-February meeting with Reno, Starr argued that a department headed by Clinton appointees could not conduct an unbiased proceeding and asked for an outsider to handle the matter.
Reno has defended her authority to handle a disciplinary proceeding against independent counsels who are technically appendages of the Justice Department, are subject to department rules and can be dismissed by an attorney general for misconduct. However, top department officials are deeply divided over whether there is a potential case against Starr that merits a full-scale investigation, with some arguing that the allegations are stale, minor or irrelevant and others insisting that as a matter of principle the department must determine whether the guidelines governing federal prosecutors have been violated, sources said.
Different approaches to the Starr issue have been examined within the department over the past three months, but Reno has not reached a decision on how to proceed. In recent days she made it clear she wants to defer formal action at least until after June 30, sources said.
With Congress taking no steps to renew it, the independent counsel statute is set to expire at the end of the month. That alone would not change Starr's status because the law allows any existing counsels to continue work. However, in April Starr argued forcefully in congressional testimony that the law is so badly flawed that it should be allowed to die.
In news interviews after the April testimony, Starr said he viewed the law's expiration as a potential turning point for his efforts. When the law expires, he said on CNN's "Larry King Live," "I will have certain duties, obligations to assess where I am in the investigation." And in an interview with the Associated Press, he said the expiration of the law requires an independent counsel to "make a determination as to whether his continuation with matters in his jurisdiction is required." Starr specifically stated that he would consider invoking a provision of the law that allows independent counsels to turn over cases to the Justice Department.
Since April, some of Starr's friends and colleagues have urged him to use the law's expiration as an opportunity to make a graceful and principled exit from a job that has damaged his reputation and no longer offers the prospect of real rewards, according to sources familiar with the exchanges. Those talks became both more urgent and complex with the failure this spring of Starr's prosecutions against Susan McDougal and Julie Hiatt Steele, which both ended with hung juries on most charges.
The deliberations in Starr's camp have been widely known in Washington legal circles for several weeks, but there have been no official communications between's Starr and Reno about his plans, according to sources. Attorneys close to Starr suggest that he may yet decide that he has an obligation to see the job through to the finish.
Still pending for Starr are two separate trials of Webster L. Hubbell, the former associate attorney general, and he has to produce reports to Congress on his investigations into the White House travel office firings and the controversy over White House access to FBI files.