Newsreal: It's time to investigate the investigator

Although he may think differently, Kenneth Starr is not above the law.


Bruce Shapiro
February 26, 1998 1:00AM (UTC)

The Clinton-Lewinsky scandal "will slowly dissipate over time under the weight of its own insubstantiality," Hillary Rodham Clinton predicted two weeks ago. Fat chance. As can be seen by his recent rash of threats and subpoenas, Kenneth Starr is a fanatic, so fixed of purpose that if left to his own devices he will keep his investigation going until they pry his cold, dead hands from the file folder.

In all of American history, his closest counterpart is Anthony Comstock, the 19th century crusader against obscenity and contraception. Like the independent counsel, Comstock was granted a franchise -- an 1873 congressional appointment as a special postal inspector -- which seemed to leave him with unaccountable, extraconstitutional power.

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Comstock, whose harsh tactics earned the sobriquet "comstockery," would surely have approved of the wiring of Linda Tripp. Like Starr, who presented the country with the spectacle of a mother coerced into testifying about her adult daughter's consensual sex life, Comstock was a master of high-pressure tactics, so effective that he drove more than one of his targets to suicide.

What finally ended Comstock's crusade was his own moral certainty, which blinded him to public revulsion and to the deep corruption of his own operation. His "fervent piety ... subordinates to its demands all the requirements of fair play, justice, equity and truth," complained one critic. Rather more quickly than Comstock (who stayed in business for a quarter of a century before falling from power), Starr has set in place the mechanisms for his own downfall through the tactics he has chosen to employ.

Firstly, Starr is not quite as "unaccountable" as he -- and his critics -- believe. While he operates outside of the usual Justice Department bureaucracy, the Independent Counsel Law (as Rep. John Conyers, D-Mich., pointed out in a little-noticed Feb. 6 letter to Attorney General Janet Reno) explicitly states that special prosecutors may be "independent" day to day, but they remain an "inferior officer" of the Justice Department, subject to its rules, standards and jurisdiction.

The attorney general, wrote the Supreme Court, "retains ample authority to assure that the counsel is competently performing," and holds "several means of supervising or controlling prosecutorial powers" of an independent counsel.

Exactly how that might play out has yet to be tested. Reno has not, as Conyers requested, officially initiated her own investigation of wrongdoing by Starr and his staff. But as the Lewinsky investigation has unfolded in increasingly odd directions, Starr has provided his critics with distinct avenues of inquiry, and Justice Department officials are said to be monitoring the situation closely.

Formal inquiries could proceed in the following directions:

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Leaks
Illegal leaking of grand jury testimony by Starr's staff has appalled career prosecutors and been made much of by the White House. Politically, this line of attack has already worked: While presidential secretary Betty Currie's testimony fell into the hands of reporters within hours of her appearance, last week's grand jury statements by Lewinsky's mother, Marcia Lewis, have remained mercifully under wraps. But it's a legal problem, too: Rule 6(e) of Federal Criminal Procedure explicitly prohibits any disclosure of grand jury matters; this rule covers not only witnesses' testimony but legal arguments, future witnesses or any strategic information that has found its way almost daily from the Starr chamber into the press. Starr himself has, rather defensively, promised to investigate his own leaks. But that's unlikely to satisfy the president's allies, who sense the counsel's legal vulnerability on this question.

The Paula Jones connection
Critics, including the president's attorney, Robert Bennett, believe the independent counsel's office has been illegally passing information to lawyers representing Paula Jones in her civil suit against President Clinton. One investigation is already under way -- an internal inquiry by Starr's own law firm, Kirkland & Ellis, where an associate attorney secretly worked on a Supreme Court brief on behalf of Jones. Perhaps as worrisome to Starr's office is a paragraph buried in the Feb. 10 Wall Street Journal, reporting that Linda Tripp consistently passed information from Starr's investigation to the Jones operation. If attorneys or investigators in the indpendent counsel's office are found to be part of this back channel, Starr could find himself in very hot water indeed.

Witness intimidation and coercion
While heavy-handedness is often part and parcel of criminal investigations, the Justice Department does have certain standards -- and Starr appears to have violated them. For example, University of Arkansas professor Steven Smith told the Washington Post that Starr's Whitewater investigators "told me to sign a document they had written that simply was not true. They even said they were going to subpoena my mother." Such stories have appeared frequently throughout Starr's Whitewater tenure. If true, they constitute an abuse of authority, punishable by law.

But who would investigate the investigator? One possibility is Janet Reno herself -- though that would be politically unwise, given her place in the president's cabinet. More likely: the Justice Department's Office of Professional Responsibility, which under department policies "oversees investigation of allegations of misconduct by Department employees." Still another possibility -- perhaps the most credible -- is the Justice Department's own in-house stable-cleaner, the Office of Inspector General.

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Starr's critics shouldn't get too excited, though. A formal investigation, if it were to occur, would be weeks, or even months, down the road. But as public criticism of Starr grows, so, it seems, does his own defiance of common-sense ethical standards.

Clinton, meanwhile, has performed an astonishing feat of political aikido, turning a sex scandal into the highest poll numbers ever enjoyed by a sitting president. Now it's time for the tables to turn legally, and for Judge Starr -- like his ancestor Comstock -- to be hoist by his own obsessive investigative petard.


Bruce Shapiro

Bruce Shapiro is national correspondent for Salon News.

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Department Of Justice John Conyers, D-mich.

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