Opening Argument – Why Kenneth Starr Should Resign

National Journal

Kenneth W. Starr has done almost everything right, as best I can tell, ever since Linda Tripp dumped the Monica Lewinsky mess in his lap on Jan. 12.

Starr and his staff are not part of a ”vast right-wing conspiracy,” as Hillary Rodham Clinton has charged. Nor is there any evidence to support the Clinton camp’s suggestions that Starr is seeking to manufacture false evidence to get the President. As for suggestions that Starr has authorized the (illegal) leaks of grand-jury secrets, they seem less credible than the long-ago claims that independent counsel Lawrence E. Walsh (now a Starr critic) authorized grand-jury leaks during his six-year Iran- contra investigation.

Starr–who is, like Walsh, fundamentally an honorable man–does not deserve the trashing he has been taking, especially from people desperate to divert attention from the evidence implicating Clinton in serious federal crimes.

So why am I calling for Starr’s resignation?

Because that single, swift stroke would slash through the Clinton camp’s diversionary tactics and put the focus back where it belongs: on whether the President lied and coaxed others to lie.

If Starr does resign, it seems likely that the three- judge special court responsible for replacing him would display more sense than in the past and would choose someone with the credentials and qualities to bring the investigation to a quick and resounding close.

That person would have strong prosecutorial experience; no significant Republican affiliations (an apolitical Democrat would be best); no other political baggage; and a well-earned reputation for talent, toughness, integrity and wisdom. He or she would be young enough to work 100-hour weeks and old enough not to be swayed by ambition.

The task would be to get up to speed in a week or two; to get rid of the loose cannons or bad apples on Starr’s staff (if there are any); to lock up as much evidence as possible, as fast as possible; to pin down the elusive President on every relevant detail, in sworn testimony; and then to decide–before the Paula Jones trial, now set for May 27–whether to refer any and all evidence implicating Clinton in ”high crimes and misdemeanors” to Congress for impeachment hearings.

Starr has many virtues. But it’s now clear that he was the wrong person for this assignment. He rose to prominence as a conservative Republican whose last big job–as President Bush’s Solicitor General–had been ended by the election of Bill Clinton. And he had no prosecutorial experience.

Worse, Starr’s ambitions for future high-level positions–perhaps on the Supreme Court, perhaps in the Senate– created at least the appearance of an incentive to curry favor with Clinton’s opponents in Congress.

Those traits do not make Starr a right-wing conspirator. But they raise the question of whether his judgment might be skewed by the force of his political beliefs and aspirations.

These questions were aggravated from the start by suspicions that political bias may have infected one or more of the three judges on the special court that fired the first Whitewater independent counsel, Robert B. Fiske Jr., and replaced him with Starr in August 1994.

Judge David Sentelle, the chief judge of the special court, was appointed to the U.S. Court of Appeals for the District of Columbia Circuit by President Reagan–as was Starr, who served with the gruff, brainy Sentelle before resigning to become Solicitor General.

OK so far, perhaps. But Sentelle is also a fervent conservative, with close ties to Clinton-bashing North Carolina Republican Sens. Jesse Helms and Lauch Faircloth. Then came the famous lunch–shortly before the special court’s decision to replace Fiske with Starr–at which Sentelle and Helms were joined by Faircloth, who had been busy unfairly slamming the estimable Fiske for coddling Clinton.

Starr has also created problems for himself. He has displayed questionable judgment by continuing to hold down a million-dollar-plus partnership with his law firm, Kirkland & Ellis. The other independent counsels whose mandates extended into the Oval Office–Archibald Cox, Leon Jaworski and Walsh– worked full-time.

Starr’s representation of Brown & Williamson Tobacco Corp. and other clients hostile to Clinton has invited attacks on his credibility. The same is true of Starr’s plan to accept a job at Pepperdine University, in Malibu, Calif., a position that would be partly financed by Richard Mellon Scaife, who has also financed some of Clinto n’s most acerbic critics.

In fairness, it should be pointed out that Starr relies on a full-time staff of experienced federal prosecutors and FBI agents, and that Clinton’s own lead law firm, Williams & Connolly, represents big tobacco companies, too. But the problem is not that Starr’s conduct is indefensible; it is that the need to defend it creates an unwarranted distraction.

None of this is to fault Starr’s handling of the Lewinsky matter, whatever one thinks of his arguably overlong investigation of other allegations against Clinton.

Before Jan. 12, Starr had no intention (an aide insists) of investigating the President’s sex life–except insofar as investigations of suspected Whitewater and other crimes led to a woman (the convicted Susan McDougal) with whom Clinton allegedly had an affair, and to other witnesses (including onetime Clinton bodyguards) who have made allegations about Clinton’s sexual activities.

Then came Linda Tripp, bearing more than 20 hours of secretly (and perhaps illegally) recorded phone calls with Monica Lewinsky, documenting allegations that included these: * Aside from describing numerous oral-sex trysts with Clinton, Lewinsky told Tripp that Clinton pal Vernon E. Jordan Jr. (whom Starr already suspected of steering hush money to Webster Hubbell to thwart Starr’s Whitewater investigation) and perhaps the President himself had encouraged Lewinsky to deny any alleged sexual relations with Clinton–and to do so under oath, if necessary, in order to hide evidence subpoenaed by Paula Jones’s lawyers. Lewinsky also confided that she had received help seeking a job in New York City from Jordan; from high-level Clinton appointees including U.N. ambassador Bill Richardson; from Clinton’s personal secretary, Betty Currie; and perhaps from Clinton himself.

* Lewinsky–perhaps on her own, perhaps on behalf of Clinton or others–had been pressing the similarly subpoenaed Tripp to lie under oath to hide not only Clinton’s alleged affair with Lewinsky, but also Tripp’s independent knowledge about Clinton’s alleged sexual advances to another woman, Kathleen Willey, when Willey visited the Oval Office in 1993.

* Lewinsky had said that her mother, Marcia Lewis, had offered to pay Tripp’s ”medical expenses” if Tripp would fake a foot injury to avoid testifying; Lewinsky herself had offered Tripp a share of a condominium in Australia as an apparent bribe; and Lewinsky had conveyed hints that Tripp’s job at the Pentagon (as a Clinton political appointee) might be at risk if Tripp told the truth.

Tripp’s story, and Lewinsky’s statements on tapes, resonated powerfully with the many allegations of efforts to cover up other matters Starr was investigating.

What should Starr have done?

I posed this question to a number of high-level Clinton appointees and former Clinton appointees with extensive prosecutorial experience. They all said that–even though perjury is rarely prosecuted in civil cases–Tripp’s allegations warranted aggressive criminal investigation, and that the wiring of Tripp to seek more taped evidence from Lewinsky was justified.

Two of these Clinton-appointed experts faulted Starr for having wired Tripp (on Jan. 17) before–rather than after–going to the Clinton Justice Department to consult about who should investigate the Tripp-Lewinsky evidence.

But even these two experts agreed that if Starr had gone to Justice first, Attorney General Janet Reno would and should have approved the immediate wiring of Tripp, to obtain as much evidence as possible before Newsweek (which was hotly pursuing the story) preempted any possibility of undercover work.

Nor, in my view, can Starr fairly be faulted for trying to squeeze the truth out of Lewinsky and her mother: Both are suspected co-conspirators in a cover-up that goes far beyond Lewinsky’s sexual activities.

Be that as it may, the best way for Starr to make his case now would be to call a press conference explaining why he is proud of his work–and why he will step aside to let someone else finish the job.

That might be a hard thing for this proud, unfairly smeared man to do. In the short run, it would mean more flak from the Clinton camp. But in the long run, Starr’s resignation might well be bad news for Bill Clinton–and might go down in history as an act of courage and patriotism.