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Investigating the Investigator

February 10, 1999 at 12:00 AM EST
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JIM LEHRER: Margaret Warner begins our coverage of the Kenneth Starr investigation story.

MARGARET WARNER: As the senate winds up its impeachment trial of the president, Independent Counsel Kenneth Starr is coming under investigation on a growing number of fronts. Today’s “New York Times” reported the Justice Department has decided to open an inquiry into whether Starr’s prosecutors misled Attorney General Janet Reno about possible conflicts of interest when they obtained permission to investigate the Lewinsky matter in January 1998. At issue, the “Times” said, is whether Starr’s “prosecutors should have disclosed the contacts between Mr. Starr’s office and the Paula Jones legal team” in the weeks leading up to Starr’s request to expand his inquiry into the Lewinsky affair. According to the “Times,” Starr’s prosecutors denied any such contacts at the time, but subsequent news stories have reported otherwise. Starr spokesman Charles Bakaly would not comment to the “Times” about whether the Department was opening an inquiry. But Bakaly insisted, “there was no misleading of justice.” Democratic Senator Tom Harkin of Iowa jumped on the “Times” story this morning.

SEN. TOM HARKIN, (D) Iowa: And if you believe the rule of law applies not only to the defendant– the president, in this case– but also to the prosecutors and those sworn to uphold that rule of law, then it is important to look at how this case got here. It’s interesting to note that in today’s February 10th “New York Times,” “the conduct of the independent counsel is so suspect and potentially violative of Justice Department policy and law that now he is under investigation for a number of reasons.”

MARGARET WARNER: In a related matter, the “Washington Post” reported yesterday that the Justice Department is asking “Starr to respond to allegations that his prosecutors violated department procedures when they first confronted Monica Lewinsky last year.” Among the issues, according to the “Post,” is whether Starr’s prosecutors acted improperly when they discussed a potential immunity deal with Lewinsky without her lawyer being present. Starr has repeatedly denied any impropriety in the way his office handled Lewinsky. The Justice Department has only limited authority over an independent counsel. The law says an attorney general may remove an independent counsel for cause, subject to review by a judicial panel, if the attorney general finds the independent counsel has been guilty of prosecutorial misconduct. No other disciplinary action is authorized. Last week, Independent Counsel Starr drew fire on yet another matter. The “New York Times” reported that “Starr has concluded that he has the constitutional authority to seek a grand jury indictment of President Clinton before he leaves the White House in January 2001.” The article cited as its sources “several associates of Mr. Starr.” The next day, the president’s lawyer, David Kendall, announced he would ask a federal judge to hold Starr and his staff in contempt for leaking grand jury information to the “Times.”

DAVID KENDALL, President Clinton’s Lawyer: The office of independent counsel has once again engaged in illegal and partisan leaking as manifested by yesterday’s page-one story in the “New York Times” headline: “Starr is weighing whether to indict sitting president.” We’re filing today in the United States District Court for the District of Columbia a motion to show cause why independent Starr and members of his staff should not be held in contempt for improper violations of grand jury secrecy.

MARGARET WARNER: Starr spokesman Charles Bakaly responded on ABC’s “Good Morning America.”

CHARLES BAKALY: We did not leak this information and that’s all I can say about that.

MARGARET WARNER: Separately, a special master appointed by federal Judge Norma Hollaway Johnson last fall is believed to be still investigating whether Starr or his deputies improperly leaked grand jury material about the Lewinsky probe to the press.

JIM LEHRER: Now the perspective of two columnists who feel very differently about Kenneth Starr and have expressed those differences in print and on this program before — Anthony Lewis of the “New York Times” and Stuart Taylor of the “National Journal” and “Newsweek.” Gentlemen, let’s begin with the last question and work back. Should Attorney General Reno remove Ken Starr, Tony Lewis?

ANTHONY LEWIS: I think it’s a little soon to answer that question, but I think that the reasons for removing him are adding up. I think it’s quite clear that he leaked, Steve Brill’s magazine “Content” showed, I thought, conclusively that Starr’s deputy, Jackie Bennett, Jr., leaked wholesale when all this began a year ago, just limiting it to that. I think it’s absolutely clear that his deputies and FBI agents violated Monica Lewinsky’s rights and specific — a specific Justice Department rule against making an immunity deal with a person who has a lawyer unless that lawyer is present. And, of course, they did all they could to keep Monica from talking to her lawyer. That was a clear violation, I think. And now we have this ethical question, the fact is that between November and January a year ago, at least one lawyer in Mr. Starr’s office was in communication with a lawyer who was advising the Paula Jones lawyers and had been for years and that contact was not disclosed to Janet Reno’s deputy, Eric Holder, when permission was granted by the Justice Department for Starr to extend his inquiry from Watergate into the Monica matter. And, you know, the rules simply bar that kind of ethical violation. It’s not just that there’s a conflict of interest, the rules bar something that would have the appearance of a conflict and that certainly had that appearance.

JIM LEHRER: Stuart, let’s take that specific one, today’s and work back to the general question. Do you read it the same way Tony Lewis does, this contact between the lawyers, et cetera?

STUART TAYLOR: Let me rewind the clock. I think if he did all these things that Tony says, he should be removed but I think there’s no evidence that he’s done any of them or at least certainly not substantiated. To start with the last, what we have are charges in the “New York Times,” which I think has been very free in making unsubstantiated charges against Starr, now being investigated by the Justice Department, which probably should investigate them, that Starr, in essence, was colluding through his subordinate, Paul Rosenzweig with Paula Jones’ lawyers. Now today Jackie Bennett, Jr., who Tony mentioned a moment ago — after I pounded on them to respond to this – said -

JIM LEHRER: Just by phone, you called him on the phone?

STUART TAYLOR: Yes. And I said, “come on, this has been floating around for a long time, what have you got to say?” He said, “we neither lied to nor misled the Justice Department and they know it.” And where this fits in is that the whole charge is that they were (a) engaged in collusion with the Paula Jones lawyers from November to January of — November of 1997 and (b), that they hid it from the Justice Department. Well, they certainly didn’t tell the Justice Department we’ve been in collusion with Paula Jones’s lawyers; they said they hadn’t. So the question is were there? If they were in collusion with Paula Jones’s lawyers, then I would agree with Tony that they misled the Justice Department and that’s serious. But I think there’s no strong evidence that they were in collusion and I’ll detail that if you’d like.

JIM LEHRER: Why is that important — that if, in fact, there was this contact ahead of time before Starr went to Janet Reno and one of his lawyers had, in fact, been in contact with a lawyer for Paula Jones, why is that a big deal?

STUART TAYLOR: I think it’s initially at least troubling because it raises the specter– if it happened and I don’t think it did -

JIM LEHRER: Okay. If it happened.

STUART TAYLOR: — and if it happened in a substantial way — well, were they sort of plotting to trap the president somehow? Let’s get Paula Jones’ lawyers and Linda Tripp and Starr together and see how we can get a trap. That’s sort of been the underlying suspicion that’s fueled this conspiracy theorizing, and that would be troublesome and it would be especially troublesome because now, since Starr never disclosed to the Justice Department, has forthrightly denied it, the question would be, if they had such contacts and there were nothing wrong with them, why didn’t they just admit it? So the real question is, if they had substantive collusive contacts with Paula Jones’ lawyers, I agree with Tony that it would be possibly cause for removal. I don’t think there’s any substantial evidence that they did and I can run through the details.

JIM LEHRER: I’m going to ask you to do that in a moment. Your point, Tony Lewis, is that based on at least what your newspaper reported on the front page today that there may be evidence of that, right, or is it still an unresolved issue for you as well?

ANTHONY LEWIS: Well, there’s no doubt that it isn’t just a collusive or conspiratorial contact, as Stuart said. Starr’s deputy, Jackie Bennett, according to one of his own colleague’s notes quoted in the “Times” today said at that meeting, “We’ve had no contact with the plaintiff’s attorneys. We’re concerned about appearances, so if it had any contact, that statement was false and misled the Justice Department. Thousand, I can’t prove they had a contact, that’s a matter for the investigation. But it’s been quite fully reported by a number of people with the names.

JIM LEHRER: You’ve looked at it and you don’t think the case has been made yet?

STUART TAYLOR: Well, let’s talk about what happened. Paul Rosenzweig was a close friend of Jerome Marcus. Jerome Marcus, we now know, was secretly working with the Paula Jones lawyers. Paul Rosenzweig in November of ’97 went to work in Starr’s office. I believe there’s no — I have heard it said –although I haven’t talked to Rosenzweig — that he denies having discussions with Jerome Marcus about the Paula Jones case – after – during the relevant period of time — with the exception of one on January 8th, just before Linda Tripp showed up. He may have talked to him, they’re friends, friends talk. But he — my impression is that, according to Rosenzweig’s story, they didn’t talk about the Paula Jones case. And the other point, and as Tony points out, Jackie Bennett said we had no conversations with the Paula Jones lawyers. Well, they did have a conversation with these lawyers on January 8th. How do you square that? One way you might square sit that it was a secret at the time from the world that this fellow, Marcus, was working with Paula Jones. Maybe Rosenzweig didn’t know he was. Maybe if Rosenzweig knew, he didn’t tell anyone else in his office.

ANTHONY LEWIS: Can I – Jim -

JIM LEHRER: Yes.

ANTHONY LEWIS: I’d like to say something a little broader on why this is important because if, in fact, the ethical rules barred Kenneth Starr from taking on that case a year ago January, I don’t think we’d be where we are for a simple reason: In my judgment, a professional prosecutor would never have taken on this matter — would never have responded to Linda Tripp’s tapes by saying we’re going to investigate the president. He’d have told Linda Tripp to go peddle her tapes. I’ve said in a column and this I — it’s a bit awkward quoting myself but I have a reason.

JIM LEHRER: It’s all right.

ANTHONY LEWIS: Last October, I said that in a column. And I used an example. I said, I didn’t believe, for example, that Robert Morgenthau, the district attorney of New York County and one of the most respected prosecutors in the country, would have investigated such a case after Linda Tripp brought the tapes — would have regarded it as beneath investigation. And I hadn’t talked to Morgenthau. The next day I got a phone call and the secretary said Mr. Morgenthau wants to talk to you. And I thought, oh, dear, I got it wrong. He got on the phone and said, “you’re right.”

STUART TAYLOR: May I offer a counter example?

JIM LEHRER: Sure.

STUART TAYLOR: Henry Ruth. Henry Ruth, who is a deputy to Archibald Cox, that’s Watergate’s special prosecutor, he took over the office after the Saturday night massacre, he became the deputy to Leon Jaworski and then he became the Watergate special prosecutor. He’s a liberal to moderate Democrat, who wrote a series of articles in the past year taking very seriously the need — I don’t know if he specifically said yeah, if I’d been Starr I would have investigated this. But he certainly said that he thinks there’s very serious evidence that crimes were committed, serious crimes, Watergate-type crimes. So there’s one. I’ve talked to others. Just to double back to one point since Tony accused Jackie Bennett of illegal grand jury leaks. That’s been denied, it’s never been proven. There’s lots of allegations, never any proof. I would be surprised if it ever turns out when the litigation is finished if that’s what the courts hold, but we don’t know. Tony also said that they clearly violated Monica Lewinsky’s rights, by which I assume he may have been referring to her constitutional rights. Judge Norma Holloway Johnson had that case litigated before her, she held that they very clearly did not violate Monica Lewinsky’s rights.

ANTHONY LEWIS: But, Stuart, at the time that Judge Johnson made that ruling -

JIM LEHRER: Let him finish.

ANTHONY LEWIS: — it was on a collateral matter and she didn’t have facts before her and, in fact, she expressed concern about the matter that I mentioned before, the trying to get Monica to sign an immunity agreements which is specifically forbidden by Justice Department rules.

STUART TAYLOR: Let me address that. Judge Johnson did say she’s troubled by that. That’s not a matter of Monica Lewinsky’s constitutional rights.

ANTHONY LEWIS: No. I agree, that’s the rules.

JIM LEHRER: Hold on, Tony. Let him finish here.

ANTHONY LEWIS: Sorry.

STUART TAYLOR: My understanding of the facts is there may have been a mention in the course of this long conversation with Monica Lewinsky on January 16th that, well, maybe we could have an immunity agreement. It didn’t go anywhere, they didn’t agree to immunity, she got a lawyer, it took many months before they actually had an immunity agreement. If there is a technical violation there, it was not a very serious one and no harm came of it.

JIM LEHRER: Look, we’re not going to be able to resolve all of these individual issues tonight but I want to get — go to the broader – back to the broader issue. Is it time, Tony, for whatever — however he got there and all of that, that will all be sorted out somewhere, is it time now for Kenneth Starr to go one way or another, either on his own, step aside, or for Janet Reno to remove him, get out of the picture? What’s your view of that as an individual?

ANTHONY LEWIS: I think it would be in Kenneth Starr’s interest to go, but I believe for a long time that he will not go because he is determined to criminally prosecute this president if not before he leaves office, which is what our story last week said he was considering, then the day he leaves office or soon afterward. I’ve always thought that Mr. Starr would stay in that job until January 20 or 21, 2001, so he could indict Bill Clinton. Now, I hope I’m wrong because I think it would be in Mr. Starr’s interest and certainly in the country’s interest to get rid of this thing.

JIM LEHRER: How do you read Kenneth Starr’s desires and intentions at this point, Stuart?

STUART TAYLOR: You know, I’m not a mind reader and I haven’t any idea what his intention is. I tell you – I wrote a year ago this month that he should resign because he had lost credibility — fairly or unfairly. And the investigation would be more credible headed by someone else. He didn’t do that. I frankly don’t think it would make sense for him to resign right now while people are accusing him of being a criminal. It would look like he’s cutting and running. If the president — if the attorney general finds solid evidence that he has committed gross prosecutorial misconduct, she should fire him. If she doesn’t and this peters out, I think it would be — it would make sense for him to resign when the dust settles and hand this off to someone else who can make the important decisions still to be made on whether to prosecute President Clinton to someone who can make it without being instantly attacked as -

JIM LEHRER: You would agree, though, that Kenneth Starr shouldn’t be the one to make that decision on whether to prosecute the president?

STUART TAYLOR: That’s my personal opinion.

JIM LEHRER: And you agree with that, Tony you just said that.

ANTHONY LEWIS: I do.

JIM LEHRER: Okay, gentlemen, thank you both very much.

STUART TAYLOR: Thank you.