Newsreal: Prosecuting -- or persecuting? -- the prosecutors

Critics of independent counsel Kenneth Starr are focusing on prosecutors in his office who were found to have used highly coercive and illegal tactics in previous cases.

By Jonathan Broder
Published February 25, 1998 1:00AM (UTC)
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WASHINGTON -- Individual prosecutors in Kenneth Starr's office are the latest targets in the escalating war between the White House and the independent counsel's office over the Monica Lewinsky affair.

Starr's opponents say details are emerging about two of his aides that bolster claims that the independent counsel's office may be abusing prosecutorial power in its investigation of President Clinton's alleged involvement with the former White House intern.


Allies of Starr are accusing the White House of trying to dig up dirt on the independent counsel's office in order to derail its investigation. In an unprecedented move, Starr has subpoened Senior White House Aide Sidney Blumenthal to appear before the grand jury Tuesday to testify about any conversations he had with journalists about Starr or his office. Blumenthal told Salon that Starr had also subpoenaed his phone logs.

The latest battle erupted when Clinton's defense lawyers began scrutinizing the conduct of two members of Starr's team, Bruce Udolf and Michael Emmick.

In 1988, a federal jury fined Udolf, a former Georgia district attorney, $50,000 for violating the civil rights of a man whom he held in jail for four days without a lawyer or a bail hearing on a misdemeanor gun charge. Georgia officials dropped an appeal of the ruling and paid the penalty, along with the plaintiff's attorney fees, from a state insurance fund. The Atlanta Journal Constitution recently ran an op-ed column highly critical of Udolf under the headline "Ken Starr's Tainted Lieutenant."


Emmick, while prosecuting a case against a former Los Angeles police officer as an assistant U.S. attorney, secretly tape-recorded the man's ex-wife admitting to having an extramarital affair and threatened to use the evidence to win her cooperation as a witness, according to news reports. The woman was prosecuted on tax charges, but a federal judge threw the case out, ruling "the government's intent was callous, coercive and vindictive," that it "used threats, deceit and harassment techniques" and "violated the due process clause" of the Constitution.

Critics of Starr's office say similar tactics have been used to coerce and intimidate potential witnesses in its investigation of the Clinton-Lewinsky affair. Certainly, the unflattering revelations about two of Starr's main investigators has put the independent counsel's office on the defensive. Over the weekend, Starr's deputy, Jackie Bennett, rushed to the defense of Udolf and Emmick, citing their reputations as career federal prosecutors and public corruption supervisors. "That's their history," Bennett said. "That's why we brought them on board."

Joseph DiGenova, a former federal prosecutor, launched a separate counterattack Sunday on NBC's "Meet The Press" when he accused the White House and Clinton lawyers of trying to intimidate investigators and critics of the president's alleged activities by retaining private detectives to delve into their pasts.


DiGenova said he had been tipped by a reporter that he and his wife, lawyer Victoria Toensing, a former Republican Justice Department official, were the targets of the White House's private detectives. DiGenova said he could not prove the tip but he believed it. "If the White House is condoning the investigation of private citizens, looking into their lives ... that is truly a frightening, frightening development," he said.

The White House called DiGenova's charge, which is also reported in this week's Time magazine, "blatant lies."


On "Meet the Press," DiGenova said the private detectives in question were from Investigative Group Inc., headed by Terry Lenzner. Last year, Lenzner was hired by Clinton's legal defense fund and the Democratic National Committee to probe campaign donations. The Washington Post, quoting sources familiar with the firm, said Clinton's attorney, Robert Bennett, also hired Lenzner to find out who was paying Paula Jones' legal bills in her sexual misconduct suit against the president.

Lenzner did not return a call seeking comment about DiGenova's allegations.

While the use of a private detective in his current travails could be politically embarrassing to President Clinton, it would be neither illegal nor unsavory, according to legal experts, especially since Starr's investigation has become tangled with the Jones civil suit. The president, like any other civil defendant, is entitled to a strong legal defense, in which private investigators routinely play a part.


However, in the political and public relations war between Starr and the White House, Starr has taken the next move. He hinted over the weekend that he regards the latest attacks on his staff as potential grounds for obstruction of justice charges. On Tuesday Starr subpoenaed Lenzner to appear before a grand jury along with Blumenthal. The subpoena issued to Blumenthal orders the White House aide to "produce any and all documents referring or relating to Monica Lewinsky ... the Office of Independent (OIC) Counsel Kenneth Starr ... attorneys and other staff members of the OIC ... any contact, directly or indirectly with a member of media which related or referred to the OIC and any communications which relate or refer to the OIC."

This is the first time a White House official has been ordered to divulge conversations with reporters since Starrs investigation into the Lewinsky affair began last month.

What all this does to the investigation into the original allegations -- that the president of the United States had a sexual affair and suborned perjury to cover it up -- is anybody's guess. Amid the rising crescendo of leaks, accusations and general all-out warfare between the two main combatants, the truth about what really happened with Monica Lewinsky seems to be getting pushed further and further into the background.

Jonathan Broder

Jonathan Broder is Salon's Washington correspondent.

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