Starr’s War

That image of Starr—as an airy, good-natured prosecutorial blunderbuss—is powerfully reinforced by Benjamin Wittes’s new book, Starr: A Reassessment. An editorial writer with The Washington Post who specializes in legal affairs, Wittes spent many hours interviewing Starr after he stepped down in 1999 from his five-year tenure as Whitewater independent counsel. Those interviews, combined with his own astute reading of the public record, have enabled Wittes to write a balanced and insightful analysis of how Starr conducted his operation—and why it went so disastrously awry. In Wittes’s view, Starr was an accomplished lawyer and decent man who bizarrely misread the statute that authorized his appointment and fundamentally misunderstood his role as independent counsel.

Instead of serving as a traditional prosecutor whose sole reason for being is to bring criminal cases that can hold up in court, Starr quite consciously turned his office into a sweeping “truth commission”—a la Bishop Desmond Tutu’s in South Africa—that was determined to get to the bottom of every allegation of wrongdoing leveled against the Clinton presidency. Starr’s flawed reading of the independent-counsel law proved a double curse: It caused him to roam far afield from his original mandate and allowed many inquiries to linger on long past the point where they could reasonably have hoped to bring any successful cases. All of this was made even worse by Starr’s strange disconnect from the real world environment in which he was operating.

Wittes’s portrait is all the more biting because he rejects the cartoonish caricatures and malicious partisan attacks on Starr’s office spread by the Clinton White House and its allies. As Wittes makes clear, Starr was never a rabid political partisan. Indeed, top lawyers inside the Clinton White House cautiously welcomed his appointment to the post. None of the many allegations of ethical infractions leveled against his office were ever substantiated. Perhaps most disconcerting to Clinton defenders is Wittes’s endorsement of the core Whitewater inquiry itself. When Starr, in May 1996, secured the felony convictions of Arkansas Gov. Jim Guy Tucker and Jim and Susan McDougal (longtime business partners of the Clintons in the Whitewater real estate venture), it was, writes Wittes, “a significant prosecutorial achievement that was entirely legitimate.”

Wittes argues that if Starr had stopped there, he might have gone into the history books as a modestly successful prosecutor who honorably discharged his duties. And, to be fair, it wasn’t quite so easy for him to stop. As is often the case in white-collar fraud investigations, after the trial, Jim McDougal agreed to cooperate and provided damaging new testimony against the Clintons. He backed up the story of David Hale, the operator of a federally backed small-business lending firm, that Clinton had pressured Hale to make a fraudulent $300,000 loan to an advertising company purportedly run by Susan McDougal. McDougal also alleged that, at a meeting with the then-Arkansas governor in 1984, the two of them concocted a scheme to route business to Hillary Clinton by placing her on a $2,000-per-month retainer. It was, as McDougal would later describe it, a way of making payments to Clinton “over the table.”

Provocative stuff, to be sure. No matter how much Clinton’s still-percolating defense machine tries to portray the entire Whitewater scandal as the fevered concoction of a Richard Mellon Scaife-funded right-wing conspiracy, the essential facts were difficult to dismiss—and inherently malodorous. McDougal, a convicted crook, was running a corrupt savings and loan that was regulated by Bill Clinton’s appointees. At the same time, he was both covering the Clintons’ debts in a floundering real estate investment firm and steering monthly payments to Clinton’s wife, in part (as he later testified) because of the extra clout he figured she would carry with the state regulators appointed by her husband. The belated discovery inside the White House living quarters of Hillary Clinton’s long-missing billing records—showing, among other things, that she had indeed undertaken crucial legal work on an questionable transaction that led to McDougal’s undoing—only aroused further, and entirely reasonable, suspicions on the part of Starr and his team.

But even after Jim McDougal agreed to cooperate in that critical summer of 1996, there still wasn’t enough for a criminal case against the Clintons. Both Hale and McDougal were convicted felons, and the documentary trail related to the sham $300,000 loan remained inconclusive. Starr’s only hope of unraveling the contradictions—and resolving the question of the Clintons’ culpability—was to hear from the only other witness with direct knowledge of the transactions in question, Susan McDougal.

In retrospect, it seems clear that Starr and his upright prosecutors were utterly clueless as to how loopy the whole enterprise was. Like many reporters, I had gotten to know Susan McDougal during the Whitewater trial. Each evening after court, usually clad in a provocative low-cut outfit, she would saunter into the bar of the Capitol Hotel and regale the lubricated press gang with hilarious stories about the McDougals’ long-ago misadventures with the Clintons. (Most of these yarns, it should be noted, came at the expense of Hillary Clinton, whom McDougal clearly viewed as an uptight snob whose mere presence was an offense against merriment.) McDougal, like her eccentric ex-husband, was a delightful raconteur. But the idea of building a criminal case against a sitting president of the United States around her, or her ex, was always improbable, to say the least. It was also soon academic.

Much to the chagrin of Starr’s team, Susan McDougal refused to cooperate at all. When Starr’s men brought her before the grand jury and immunized her, she openly taunted them—and was hauled away to jail for contempt of court.

It is Wittes’s argument that this is precisely where Starr lost his way. Faced with a stonewalling witness and an inconclusive record, Starr’s chance of bringing any more criminal charges out of the Whitewater case pretty much evaporated. But instead of winding down, as most professional prosecutors would have done, Starr persisted—not because he had any reasonable hope of flipping Susan McDougal, but because he saw his mission in far broader terms. “I was absolutely determined to do everything that I could to get the truth about the core of this investigation,” Starr told Wittes. In their many post-probe chats, Starr revealed something to Wittes that wasn’t quite so clear at the time: that, under his reading of the now-expired independent counsel law, he believed he had a special obligation, not merely to prosecute, but to unravel the “truth” of the hopelessly tangled Whitewater mess.

Starr appears to have concluded that this broader mission had been imposed upon him because the admittedly poorly written—and frequently amended—independent counsel statute required him to issue a final report when his probe was finished. But Wittes pretty much demolishes that argument, showing, through a careful reading of the legislative history, that the reporting requirement was intended largely as a ministerial function—and not as a broad mandate for an independent counsel to reach sweeping conclusions about the underlying facts at hand. Indeed, the whole purpose of the law was to ensure that high-level public officials got the same treatment when under investigation as other citizens—not that they be subjected to some greater measure of scrutiny in order to achieve the higher and ultimately illusory goal of historical “truth.”

Wittes’s book quotes from interviews he conducted with the principal author of the law, Sen. Carl Levin, as well as an array of other independent counsels. All of them decisively rejected Starr’s interpretation as an almost radical overreaching. “Starr’s is a bad—almost a crazy bad—reading of the law,” said John Barrett, a former deputy independent counsel and an expert on the statute. Even more stinging are the words of Starr’s successor, Robert Ray. “I am not a congressional committee, nor am I a newspaper,” Ray told Wittes. “I am a prosecutor. I turn a spotlight on to see if there are crimes to prosecute, and when I decide I don’t have a case, I turn the spotlight off, because my tools are dangerous tools.”

It was during the Monica Lewinsky investigation that Starr’s truth crusade reached its zenith. However dubious the original, rushed decision to secretly tape Lewinsky on Jan. 13, 1998, Wittes argues—quite correctly, in my view—that the evidence gathered by Starr’s office in the early weeks of the probe would have tempted most prosecutors. The ubiquitous Vernon Jordan—who had played a key role in lining up suspicious payments to another recalcitrant Whitewater witness, Webster Hubbell—had in fact arranged to get Lewinsky a job with the Revlon Company. He did so right after she received her subpoena to testify in the Jones case. Clinton’s notorious monologue to presidential secretary Betty Currie (“I was never alone with Monica, right?” “Monica came on to me and I never touched her, right?”) had all the earmarks of classic witness tampering. Wittes describes Clinton’s behavior through the whole matter as “consistently venal.”

But once negotiations to secure Lewinsky’s cooperation collapsed in early February 1998—largely because of the buffoonish conduct of Lewinsky’s then-lawyer, William Ginsberg—Starr found himself in the same situation he had faced with Susan McDougal: He had tantalizing evidence of felonious conduct, but without any reasonable hope of bringing a criminal case. Yet once again, Starr pushed forward, consumed by his notion that he had to learn “the truth” about the president’s relationship with Lewinsky. In the process, he took on the dubious role of de facto impeachment investigator for the Republican-controlled House of Representatives. By the time Starr issued his report to the House—thick as it was with unpleasant sexual details—a large segment of the public had already come to see him as at least as big a villain as Clinton in the whole affair.

Even judging it on his own terms, as that of a truth commissioner rather than a prosecutor, Starr’s tenure can only be judged a colossal failure. The only justification for his vision of his job was that it can clear up, one way or another, matters of public controversy involving high-level officials, thereby allowing the public to make its own judgments. But the final Whitewater report—four volumes, more than 2,000 pages—wasn’t released until March 2002. Its bottom-line conclusions—that there was insufficient evidence to prove that the Clintons committed any crimes—could easily have been written at least five years earlier. Even granting Starr’s strongest point—that much of the delay came from years of stalling tactics by the Clintons and their lawyers—the absurdity of the situation is inescapable.

An investigation into events that took place years before Bill Clinton assumed federal office wasn’t completed until more than a year after he left it. The final cost to the U.S. government was $64 million—and incalculable damage to the body politic.

Starr probably believed that in talking to Wittes, an eminently fair-minded legal analyst, he would achieve some measure of understanding, if not vindication. But what emerges from this well-reasoned tome is how little Starr understands about where he went wrong. Wittes captures this most tellingly in a remarkable scene in which Starr, after he has resigned, gives a law-school lecture about the excesses of earlier independent counsels. He especially chastises a Reagan-era independent counsel, Whitney North Seymour, for his “monomaniacal” pursuit of former presidential aide Michael Deaver.

Seymour, it seems, had the audacity to upset diplomatic protocol by attempting to subpoena the Canadian ambassador—a move that Starr portrays as an encroachment on the foreign policy prerogatives of the president. Starr, Wittes concludes, may be the “only person in the United States still marveling at the recklessness of the Seymour investigation” when Starr’s very name had become “shorthand in the common parlance for the monomaniacal pursuit of a president.” That in his hours of interviews with Wittes, Starr barely saw the irony in all this is breathtaking—and further evidence of just how out of touch he always was.

Michael Isikoff is an investigative correspondent in the Washington bureau of Newsweek and the author of Uncovering Clinton: A Reporter’s Story.

Michael Isikoff is an investigative correspondent in the Washington bureau of Newsweek and the author of Uncovering Clinton: A Reporter’s Story.

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