Case closing

The Justice Department's "request" that Kenneth Starr investigate his own chief Whitewater witness is one of the last nails in the independent counsel's coffin.

By Bruce Shapiro
Published April 10, 1998 7:00PM (EDT)

QUESTION: Good morning. How are you?
STARR: Sorry, running late.
QUESTION: How are you, sir?
STARR: Got to empty the trash ...
-- Kenneth Starr press conference as broadcast on CNN, April 2, 1995.

Running late and holding a bag of garbage: That's an ever more apt metaphor for independent counsel Kenneth Starr's investigation. While Judge Susan Webber Wright's dramatic dismissal of Paula Jones' lawsuit may have marked a symbolic turning point, it was only over the last several days that the legal underpinnings of Starr's inquiry quietly began to crumble.

A key document in Starr's implosion: Deputy Attorney General Eric Holder's April 9 letter requesting that the independent counsel consider investigating charges, first raised in Salon, that Whitewater witness David Hale was on the payroll of right-wing money man Richard Mellon Scaife.

"U.S. Urges Starr to Probe Alleged Hale Payments," trumpeted the Washington Post; but that headline, echoed in tone in the New York Times and elsewhere, missed the significance and political nuance of the moment. Only USA Today got it right: "New Twist in Investigation Could be Conflict for Starr."

Given Starr's plan to retire to a Scaife-funded position at Pepperdine University, the Justice Department's letter asking Starr to look into Scaife's Arkansas operatives may seem an odd request. In fact it was a tactical step by the Justice Department nearly as brilliant as Attorney General Janet Reno's earlier recommendation that Starr take on the Monica Lewinsky investigation was disastrously ham-handed.

Holder told Starr that U.S. attorneys in Arkansas believe Hale "may have received cash and other gratuities from individuals seeking to discredit the president during a period when Hale was actively cooperating with your investigation." But then Holder added what amounted to an ethical squeeze play: "There have been suggestions that your office would have a conflict of interest ... in looking into this matter because of the importance of Hale and because the payments allegedly came from funds provided by Richard Scaife," in which case Starr, if he felt it was the right thing, should turn the case back to the Department of Justice.

In the past Starr has managed to ignore charges of ethical violations, even with an array of distinguished scholars such as Hofstra University's Monroe Freedman and New York University's Stephen Gillers publicly criticizing his ties to Scaife. During last month's hearing before the 8th Circuit Court of Appeals in the ethics complaint brought by Connecticut public defender Frank Mandanici, Starr dodged the ethics question altogether, focusing instead on the technical issue of Mandanici's standing to bring the case. But with Mandanici's suit still pending, to ignore Holder's request would not only damage his already abysmal public credibility but would risk provoking sanctions from the 8th Circuit.

So Starr is left with only two choices: Either turn the Hale case back to Justice, implicitly admitting the conflict that has existed all along; or prove his independence by speedily looking into -- and possibly prosecuting -- his patron Scaife's operatives for witness tampering and obstruction of justice, along the way virtually assuring a new trial for Susan McDougal, whose Whitewater conviction rests in large part on Hale's possibly tainted testimony.

So uncomfortable is Starr's position that by Friday he was for the first time taking public steps to distance himself from Clinton's conservative critics. "Sources" in the Starr camp were telling the Washington Post that Starr "believes Scaife and others on the far right are irresponsible." That may, in fact, reflect Starr's private belief; prior to assuming the post of independent counsel he was widely respected by figures as diverse as his NYU colleague Gillers and radical lawyer William Kunstler, at whose memorial service Starr spoke. But as an attack of conscience it comes too little, too late, with his case unraveling and Starr's own responsibility being called into question.

If Holder's letter was a singularly unwelcome arrival on Starr's
doorstep, his own office had already telegraphed that there was more bad news to come when it leaked news earlier this week of the
independent counsel's impending findings in Whitewater and related investigations. Sugar-coated as a possible report to the House of Representatives on matters that might (in the language of the independent counsel law) "constitute grounds for impeachment," in fact the leak seemed to forewarn the opposite: that the investigation was collapsing from its own insubstantiality.

Indeed Starr himself had begun hinting as much during his own curbside press conference the day after the Paula Jones ruling. "The real issue is that we're examining, were there crimes committed? We hope for the sake of the nation that we would conclude that
no crimes were committed." Press leaks concerning Starr's report this week suggested that far from "impeachable offenses," the independent counsel's long and costly inquiry was turning up absolute zero. The original Whitewater scandal? "Would not raise impeachment issues," reported Susan Schmidt in the Washington Post. Vincent Foster's suicide,
the White House travel office firings, a junior administration employee's rifling of FBI files, Hillary Clinton's billing records -- all touchstones for the "Clinton Chronicles" crowd? "Concluding without charges."

Which leaves only the Lewinsky affair. But here, too, it was a bad week for Starr. The same day that Deputy Attorney General
Holder delivered his letter, federal Judge Norma Holloway Johnson
delivered another message: Starr's subpoena of Lewinsky's
book-buying records amounted to a "chilling effect" on booksellers' and book purchasers' First Amendment rights. Johnson ordered Starr to demonstrate a "compelling need" for Lewinsky's records or withdraw his subpoena.

Holloway's ruling, barely a week after the Jones case was
dismissed, served only to underscore the fundamental source of public unease with Starr's Lewinsky inquiry: the seemingly irresistible impulse that drives him to invade
relationships protected either by the Bill of Rights or by a general understanding of what constitutes privacy and propriety. With the single exception of Linda Tripp's illegally recorded telephone tapes -- itself a gross invasion of individual privacy -- the perjury strand of Starr's investigation rests entirely upon incursions into privileged terrain: Lawyers and clients; mothers and daughters; now bookstores and their patrons. What's next? Lewinsky's psychotherapy records?

Despite all the congressional and pundit bluster about impeachable offenses, in hard legal terms Starr's long, expensive inquiry is running out of oxygen. It's now vividly clear that the Jones lawsuit amounted to artificial life-support
for an already-expiring investigation.

Last week I had a conversation with a sex-crimes detective from a
Midwestern city. "Do you know how many rapes and murders I could wrap up for $30 million?" he asked incredulously as we watched Starr on television. The office of independent counsel
may yet stir and rattle before finally giving up the ghost. But it's time to administer the last rites.

Bruce Shapiro

Bruce Shapiro is national correspondent for Salon News.

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