The grand inquisitor

Kenneth Starr may "hold all the cards," but his hand is weak.

Published January 27, 1998 8:00PM (EST)

As the Clinton-Lewinsky scandal enters its second week, Grand Inquisitor Kenneth Starr looks to be riding high, squeezing the principals with threats of perjury and obstruction of justice charges, shaping media coverage with selective leaks and sending out sexual SWAT teams to rummage through Washington's garbage cans for further evidence of presidential impropriety.

But don't write the chapter page of this story just yet. Beneath the media frenzy lie two fundamental facts: Legally, Starr may be facing a dead end, and politically, his tactics may be about to backfire in the court of public opinion. Maybe, as Monica Lewinsky's lawyer said on the Sunday talk shows, Starr "holds all the cards." But his hand is a weak one -- which is one reason why the Lewinsky immunity negotiations are dragging on.

Let's start with the "evidence" that set the scandal in motion -- Linda Tripp's 20 hours of tape-recorded telephone conversations with Lewinsky. Tripp lives in Maryland, and under title 10, subtitle 4 of the state's Annotated Code, it is a felony, punishable by up to five years in prison, to record a phone conversation without the consent of both parties. So Tripp's tapes, however titillating to the press, are almost certain to be deemed inadmissible in any legal proceeding as "fruit of the poisoned tree" -- evidence obtained in the course of an illegal act. And never mind Tripp's well-established personal animus to the president, political links to the right and financial interest in selling a book, all of which make her a less than ideal witness.

It is also striking that Tripp, Starr or whoever has been doing the leaking chose to share with the media a small portion of Tripp's tapes. It's possible that the remaining tapes will show Tripp feeding Lewinsky details of her story, or otherwise shaping the conversation much as a skilled, manipulative police interrogator can extract a convincing but utterly false confession.

It's also conceivable that Starr's own tape, made by wiring Tripp before her final meeting with Lewinsky, could cause some trouble with a judge, since it was made before Starr was granted permission to expand his inquiry. Former Iran-contra special prosecutor Lawrence Walsh has gone so far as to suggest that Starr engaged in witness tampering when he dispatched Tripp to tape Lewinsky at a time when both women were preparing to testify in the Paula Jones case.

Then there is Lewinsky herself. Even if she reaches an immunity agreement with Starr -- by no means certain -- she is a nightmare witness: Whether the tapes represent truth or fabrication or some combination, any competent lawyer will make hash of Lewinsky's credibility. If, as is now suggested, she lied in her sworn affidavit in the Paula Jones case, why wouldn't she lie again? Jurors don't tend to believe admitted perjurers, as they made clear about Starr's star witness, David Hale, in a Whitewater-related case involving James and Susan McDougal. "I was brought up with lies all the time," Lewinsky reportedly told Tripp. "That's how you got along ... I have lied my entire life." What will a jury make of that?

Starr's strategy here, as it has been since he took over the Whitewater inquiry some $30 million ago, is to pressure the president's friends to turn on the first family. So far, it hasn't worked very well. Webster Hubbell served his time for looting the Rose Law Firm without implicating the Clintons in any wrongdoing. Susan McDougal, the Clintons' former Whitewater investment partner, has submitted herself to 18 months of solitary confinement for contempt rather than give Starr what he wants, which in her view goes well beyond the truth. Does Starr really think that Vernon Jordan -- survivor of an assassination attempt, veteran of multiple arrests in the civil rights movement before his career as a Washington fixer -- will fold where the infinitely less experienced Hubbell and McDougal did not?

Which brings us to the broader politics of the inquisition, and the possibility of a massive public revulsion against Starr. As the White House gets its public relations act together, expect to see Susan McDougal's unlikely martyrdom raised to new levels of visibility. Expect also to see the media -- which up to now has given free rein to the unsubstantiated leaks coming out of the independent counsel's office -- to take a closer look at Starr's own conflicts of interest. For example, in his Whitewater inquiry, why did Starr go after officials of the Resolution Trust Corporation who just happened to be suing his law firm, Kirkland and Ellis, for negligence? What does it mean that Starr, while independent counsel, continued to represent highly partisan conservative causes like the Bradley Foundation, which happens to be a key backer of the Paula Jones campaign?

Apart from a precipitous decline in President Clinton's popularity ratings, the latest opinion polls suggest that Americans are deeply troubled by the idea of the country's political life being held hostage by a peeping Tom prosecutor investigating the sex lives of two consenting adults. In the latest CNN poll, 51 percent of those interviewed agreed that Starr has "gone too far." Sixty percent said that the president's sexual practices should remain private. And 62 percent thought Starr's use of a hidden microphone to record Lewinsky's conversation with Tripp to be "inappropriate."

President Clinton -- spineless, hypocritical, careless with his friends and neglectful of his core constituencies -- may deserve whatever fate awaits him. But whatever one thinks of the president, Starr's pursuit of him, with the intimations of sexual blackmail, represent a dangerous abuse of prosecutorial power.

Unsubstantiated rumors of semen-stained dresses (of which Lewinsky's lawyer says he has no knowledge) and snooping Secret Service agents may be commanding public attention for now. But remember how the public responded 45 years ago to the words of lawyer Joseph Welch in the Army-McCarthy hearings, ending one particular witch-hunt: "Sir, have you no decency?" A similar revulsion may yet bring down America's latest grand inquisitor.

By Bruce Shapiro

Bruce Shapiro is national correspondent for Salon News.

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