<p>Blame The Law, Not The Lawyer by Alison Frankel The American Lawyer March, 1998
The American Lawyer /Counsel Connect

In the three-and-a-half years since Kenneth Starr was appointed independent counsel, his investigation has sprawled across the political landscape as inexorably as an ugly subdivision. Just think of all the names that have flitted by: Whitewater, Madison Guaranty, Castle Grande, Jim Guy Tucker, Susan McDougal, James McDougal, Vincent Foster, Webster Hubbell, the Rose Law Firm, Travelgate, Filegate, Interngate. The very litany of cases -- and the more than $30 million they've cost -- are grist for the Democratic politicians and defense lawyers who have spent the last month complaining that Starr, in a quest to ruin the President, has roamed unchecked into territory utterly unconnected to a long-ago Arkansas land deal. Those criticisms resonated so persuasively that Americans, according to late January polls, have come to disapprove more strongly of Starr's conduct than they do the president's.

There's a weird fallacy at work here. There are plenty of reasons to question Starr's conduct as independent counsel: his extracurricular ties to conservative groups; his stubborn insistence on maintaining his million-dollar-a-year private practice despite conflict-of-interest allegations; the regular appearance of "sources in Starr's office" in the press; and, in the case of former White House intern Monica Lewinsky, his decision to wire Linda Tripp before going to the Justice Department for permission. And there are also plenty of reasons to worry about the ever-expanding mandates of recently appointed independent counsel. Just ask the Justice Department how it feels about some of the cases pursued by independent counsel Donald Smaltz, who has cast a wide net indeed in his investigation of Agriculture secretary Mike Espy.

But Starr doesn't deserve to be the poster boy for independent counsel reform. Despite the hand-wringing about his jurisdictional excesses, Starr has actually proceeded cautiously as his investigation has expanded, always following the procedures established by the independent counsel statute. He has consistently shown respect for the Justice Department, even as the judiciary in the last two years provided a means for independent counsel to sidestep the attorney general's oversight. Of Starr's six major publicly known forays out of Whitewater, five were explicitly approved by the Justice Department, and the sixth -- the recent probe of allegations that Clinton associates induced Webster Hubbell to keep quiet about the Clintons' Whitewater involvement -- falls within his original mandate, which includes jurisdiction over any attempts to block his investigation.

The power and range of independent counsel will undoubtedly -- and deservedly -- be the focus of the debate over the future of the law. And thanks to the Lewinsky case, that previously obscure question is now a topic of national discourse. The irony is that Starr -- who has followed the law as Congress wrote it and the Justice Department interprets it -- may ultimately be the catalyst for radical changes to it.

An Abundance Of Caution

Starr's attitude toward jurisdictional questions became clear only a couple of weeks into his Whitewater assignment. In August 1994 the three federal appeals court judges who oversee independent counsel appointed the Kirkland & Ellis partner to replace Davis Polk & Wardwell partner Robert Fiske, Jr., who had been tapped by Attorney General Janet Reno during a lapse in the independent counsel law. Starr's initial mandate was to investigate "James B. McDougal's, President William Jefferson Clinton's, or Mrs. Hillary Rodham Clinton's relationships with Madison Guaranty Savings & Loan Association, Whitewater Development Corporation, or Capital Management Services, Inc." But the three judges, known collectively as the special division see "Beyond Judgment," page 64 , also gave Starr the leeway to probe any additional, related crimes, as well as any attempts to obstruct his investigation.

Starr picked up where Fiske had left off, targeting Justice Department official Webster Hubbell, former Clinton business partners James and Susan McDougal, Arkansas governor Jim Guy Tucker, and others obviously connected to Whitewater. But, at the end of August 1994, Starr went to the Justice Department to request jurisdiction over the investigation of tax and bankruptcy fraud at Landowners Management System, Inc., a real estate company that Tucker was involved with. Though the Landowners Management case had grown out of Fiske's investigation, the ever- careful Starr wanted to be sure he had the power to continue it.

Permission to do so, under the independent counsel statute passed in 1994, could come from either the attorney general or the special division. Using what he later called "an abundance of caution," Starr covered both bases. Even after the Justice Department concluded that the Landowners Management case was related to Starr's core Whitewater investigation and agreed to refer the case to him, Starr sought, and quickly received, an order of referral from the special division.

More than three years later, "abundance of caution" well characterizes Starr's approach to jurisdictional issues. A former judge on the U.S. Court of Appeals for the D.C. Circuit, Starr is scrupulous about process; moreover, with his own Justice Department history -- he was chief of staff to Ronald Reagan's first attorney general and was solicitor general in the George Bush administration -- Starr espouses respect for Justice's institutional interest in maintaining control over the scope of an independent counsel's investigation. (Indeed, Justice Department control of jurisdiction, as well as the attorney general's power to remove an independent counsel for "good cause," were among the factors that persuaded the Supreme Court in 1988, in Morrison v. Olson, that the independent counsel statute did not violate the Constitution's separation-of-powers principle.)

In marked contrast to Espy independent counsel Smaltz, who, in congressional testimony last December, essentially accused the Justice Department of attempting to impede his far-flung investigation, Starr has cultivated good relations with the department. Smaltz has managed to cross the Justice Department and defense lawyers, at least four of whom have written angry letters to Reno about his conduct as independent counsel. The Tyson Foods, Inc., branch of his investigation -- which included Federal Bureau of Investigation visits to the homes of Tyson employees who had filed workers' compensation claims, as well as subpoenas to old Tyson family friends for 15-year-old snapshots of Don Tyson on his fishing boat -- inspired one Justice Department dressing-down of Smaltz; his subsequent insistence on pursuing a case that the department deemed unrelated led to a litigation showdown in 1996. (Smaltz has always said that his record, which includes a December 1997 guilty plea from Tyson Foods, justifies his investigation; he says he has always stayed within his jurisdiction. None of the numerous challenges to expansions of his mandate have been upheld by the courts that have reviewed them.)

There have been no similar Justice Department disputes with Starr. "Starr's office went by the book to the point of obsessiveness," says one of his former lawyers. "We always got clearance to avoid questions down the road."

That was the case in 1996, when Starr's staff turned up a memo suggesting that the 1993 firings at the White House travel office merited investigation. Starr took the memo to the Justice Department. He was "neutral-to-lukewarm" about taking the case, says the former Starr staffer, but the special division, at the request of the attorney general, formally expanded his probe to include Travelgate. Starr was even less enthusiastic about the second publicly known formal expansion of his mandate: He informed the department that he did not want to proceed with an investigation of the White House's examination of certain FBI files, but the attorney general and the special division assigned it to him anyway. (Says one lawyer involved in Filegate: " Starr's lawyers were as bored by it as White House lawyers were.") Neither investigation, which were both handled out of Starr's Washington office, has yet resulted in indictments. In a few other instances that have never become public, according to one former Starr lawyer, Starr sought and obtained either a referral of a related case or a formal expansion of his jurisdiction; those investigations produced no indictments and remain secret.

Starr's general practice, say three former members of his staff and another lawyer familiar with the Justice Department's view of Starr, was to notify the department of issues at the borders of his jurisdiction. In 1997, for instance, Starr's Washington, D.C., office was preoccupied with the investigation of allegations that the Clintons, through longtime friend Vernon Jordan, a partner in the Washington office of Akin, Gump, Strauss, Hauer & Feld, had bought the silence of Webster Hubbell by lining up lucrative legal assignments for him after he resigned from the Justice Department and before he was indicted. MacAndrews & Forbes Holdings, Inc., the parent company of Revlon, Inc. -- on whose board Jordan sits -- had, at Jordan's suggestion, retained Hubbell during that period. Starr's staff subpoenaed MacAndrews records and questioned MacAndrews witnesses; the company's general counsel, Barry Schwartz, reportedly testified before the grand jury. Though MacAndrews hadn't heard from Starr's office since last summer, two former Starr staffers say that the Hubbell investigation was still going on through the fall of 1997. Starr did not need Justice Department clearance to check out the alleged obstruction, which was clearly part of his original mandate. But because the Hubbell probe overlapped with the department's campaign finance investigation, says a former Starr lawyer, Starr's office worked with Justice lawyers to establish jurisdictional boundaries. "We worked so closely," the former Starr staffer says, "that they were asking us for advice in how to deal with White House intransigence." (A Justice Department spokesperson declined to comment.)

Starr Tripps Out

On January 12, when Linda Tripp called Starr's office and, according to Newsweek, said she had tapes suggesting that Vernon Jordan and the president had told Monica Lewinsky to lie about her alleged affair with Clinton when she testified in the Paula Jones sexual harassment suit, Starr must have known that he faced a jurisdictional dilemma. The president's sex life is dangerous ground, as Starr learned last June, when The Washington Post reported that FBI agents and prosecutors working for him had questioned Arkansas state troopers about the nature of President Clinton's relationships with a dozen women. Though Starr's office attempted to justify the investigation as a search for Clinton confidants who might have relevant Whitewater information, the independent counsel was roundly criticized for the inquiry, which, the Post reported, marked "a sharp departure" for him.

But Starr clearly considered Tripp's allegations of obstruction of justice by the president too serious to ignore -- and the alleged involvement of Vernon Jordan arguably linked Tripp's assertions to Starr's own ongoing Hubbell investigation. Tripp, according to Newsweek, was scheduled to meet with Lewinsky the day after she first met with Starr's prosecutors; Starr, Newsweek reported, decided to wire her without going to the Justice Department for permission.

That decision has occasioned harsh criticism. "Come on," says one Clinton partisan. "It smells so bad it stinks." By wiring Tripp, this argument goes, Starr showed no respect for jurisdictional niceties, making an improper incursion into territory that didn't belong to him. And the alleged Vernon Jordan link, says one lawyer embittered by face-offs with Starr's office, was just convenient cover. "It doesn't pass the smell test -- it's so completely attenuated that it's bullshit," this lawyer says. "Starr has been looking to get into sex for a long time."

On the other hand, Starr's defenders, who include career prosecutors, say the sting was a classic law enforcement technique and a sensible way to test Tripp's credibility. "The independent counsel statute is not designed to thwart the effectiveness of law enforcement," says one, echoing the views of two other former Starr lawyers. "If ordinary law enforcement strategy dictates you take a certain step, you do it." Adds another: "It would have been irresponsible not to do the sting ."

However dubious his investigative tactics, Starr showed his usual caution once he had credible evidence -- a legally obtained tape, as well as a piece of paper entitled "points to make in an affidavit" that Lewinsky reportedly gave to Tripp -- to support Tripp's claim of obstruction of justice. Starr had several choices. Under the independent counsel statute, there are two overlapping mechanisms by which an independent counsel can broaden jurisdiction. One is to request from the Justice Department a formal expansion of the investigation into a new area -- as Starr did in the travel office and FBI files matters. The second is to request the referral of a related case, as Starr did in the Jim Guy Tucker bankruptcy fraud case. Under the independent counsel statute of 1994, a referral can come from either the attorney general or the special division.

And, indeed, under the 1996 precedent established by Starr's counterpart Smaltz, the special division can actually refer related cases to an independent counsel over the objection of the Justice Department. Before the Smaltz case, In re Espy, there was ample case law to support the Justice Department's control of independent counsel mandates: In 1987 the D.C. Circuit ruled, in In re Theodore Olson, that the special division could not refer a matter to the independent counsel because the attorney general had already twice declined to refer it; and in a 1995 ruling in Starr's own Landowners Management bankruptcy fraud case, the St. Louis-based Eighth Circuit ruled that the Justice Department's decision to refer a case is not reviewable by the courts. But in 1996, Smaltz, who had been told in informal discussions with Justice lawyers that the department would decline his request to refer a case to him, bypassed the department and applied directly to the special division for referral. The special division, over the objection of the Justice Department, granted the referral, leading to defense-bar shudders about the unfettered power of independent counsel.

With his tapes of Lewinsky in hand, Starr chose to request a referral from the Justice Department, asserting that the alleged Lewinsky obstruction of justice in the Jones civil suit was related to his existing Hubbell obstruction. His strategy suggests both that his office wanted to hold on to the Lewinsky investigation -- there was no other reason to assert the Hubbell link -- and that he felt confident that the Justice Department would agree to give it to him. (He could otherwise have gone straight to the prosecution-friendly special division.)

Starr deputy Jackie Bennett, Jr., met with deputy attorney general Eric Holder, Jr., on Thursday January 15, according to Newsweek. Only one day later, Newsweek reported, after considering the opening of a Justice Department investigation or the appointment of a new independent counsel, the department formally requested an expansion of Starr's mandate. (One knowledgeable source says that the department opted for an expansion rather than a referral because, in the wake of the In re Espy precedent, it is attempting to narrow the definition of relatedness.) The judges approved adding the Lewinsky case to Starr's ongoing investigation of Whitewater.

So what's left to criticize? Plenty about Starr's handling of the Lewinsky case: press leaks, overzealous grand jury subpoenas, undue pressuring of a young woman, overreliance on questionable witnesses. And there's also plenty to criticize about the independent counsel statute, which in 20 years has been amply proved to grant too much time, too much money, and too much power to prosecutors, leading to what The New Republic recently called the "criminalization of politics." But you can't blame Ken Starr for stepping out of bounds. As one partisan says: "He's hardly a madman running around."

This article is reprinted with permission from the March 1998 issue of The American Lawyer  © 1998 American Lawyer Media.


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