Investigating the investigator

Michael Shaheen, the man probing whether Kenneth Starr's key Whitewater witness was paid off by Clinton critics, is known as an ethical straight-shooter.

Published July 7, 1998 11:40AM (EDT)

As Kenneth Starr forges ahead with his multiple investigations of President Clinton, a Starr appointee has launched a probe unlike any other since Congress created the position of independent counsel two decades ago. Michael E. Shaheen Jr., a 57-year-old former senior Justice Department official, is looking into allegations that David Hale, Starr's principal witness in the Whitewater affair, was paid by Clinton critics, and whether such payments may have influenced his testimony. That means that Shaheen is now, in effect, investigating the independent counsel -- an unprecedented and potentially explosive undertaking that could determine the fate of Starr's entire Whitewater probe.

"They are breaking new ground here," says Michael Bromwich, the Justice Department's inspector-general. "There are no ground rules to follow when you have a serious investigation of the investigator, particularly in an independent counsel context, which is not set up to deal with it. I've never seen anything like this."

Shaheen's investigation stems from allegations, first reported by Salon in March, that conservative critics of President Clinton provided Hale with money and other assistance while he was cooperating with Starr's Arkansas investigation between 1994 and 1996. Hale is key to Starr's investigation because he testified that Clinton pressured him to obtain a fraudulent $300,000 loan from the Small Business Administration for Susan McDougal, Clinton's partner in the failing Whitewater land deal. Clinton denies he exerted such pressure. Hale's testimony on other matters also helped Starr convict former Arkansas Gov. Jim Guy Tucker, as well as James and Susan McDougal.

Hale denies he received any payments from Clinton's political enemies. But in April, after FBI agents filed a report based on extensive interviews with two witnesses who said they had firsthand knowledge of the payments, Attorney General Janet Reno publicly called for an investigation.

A few days later, in a letter to Starr, Deputy Attorney General Eric Holder urged the independent counsel to conduct the probe. But Holder also questioned Starr's ability to investigate whether his key witness had been tainted and suggested the independent counsel might want to refer the matter back to the Justice Department. In a reply to Reno, Starr noted that the Justice Department had numerous conflicts itself, not least, he implied, the fact that President Clinton is her boss. But Starr proposed working with Reno to find a mutually acceptable outside investigator with no perceived conflicts.

In late May, the two sides reached a compromise with the appointment of Shaheen, who retired last December after serving for 22 years as the head of the Office of Professional Responsibility, the Justice Department's internal watchdog unit. As an extra hedge, an independent panel, made up of retired federal judges Charles Renfrew and Arlin Adams, was formed to review Shaheen's report and make recommendations. Since then, Shaheen has assembled his own independent staff of attorneys, FBI agents and investigators from other branches of government.

Not surprisingly, the talk in legal and political circles here has focused on whether Shaheen will aggressively pursue Starr or pull his punches.
"He's completely fearless," insists a former Justice Department associate who has known Shaheen for many years. "No one is going to stop him. He wasn't at Justice for 22 years because he's a softy. Frankly, I wouldn't want to be in Starr's shoes right now.

"I know from talking to him before this assignment that he would only do it if he were given the powers to do the job," continued the former associate. "I would bet my right arm on that investigation being thorough and that he has the powers to do it."

Others aren't so sure. While acknowledging his reputation for independence and integrity, they say it was largely Shaheen's bureaucratic self-preservation skills that enabled him to stay at his job for so long. Shaheen "is the kind of guy who figures out where he wants to be and then gets there," says a prominent Washington attorney who asked not to be identified. "If he decides to get Starr, then he'll get him. If he decides that's not where he ought to be, he won't. He could be tenacious either way."

Shunning the public spotlight while he conducts his probe, Shaheen did not return calls seeking an interview for this article. But he has expressed his views on the value of internal probes in general, based on his long years of investigating his colleagues at the Justice Department. "Self-policing can be the most effective -- if it's honestly done," he told the Los Angeles Times in January.

Still, unanswered questions remain about the full extent of Shaheen's mandate. For example, it is still not clear whether he has the power to compel government and nongovernment witnesses to testify under oath, or if he must turn to Starr to do that.

It's also not known whether Shaheen will be able to expand his investigation if he discovers that Hale or conservative political activists broke laws unconnected to the alleged payments. Some Justice Department officials have suggested that Shaheen also could be called upon to take on additional issues, like the allegations of Starr's leaks to the media and complaints that Starr's deputies violated Monica Lewinsky's rights last January when they first questioned her without her lawyer present about her alleged affair with President Clinton.

"This is a work in progress," said William Webster, a former FBI and CIA chief whose refusal last week to join the Shaheen review panel, citing "professional and other reasons," has underscored the sensitivities that have begun to complicate the investigation. "It will define itself as it goes along."

Some insight into how Shaheen may conduct the probe can be gleaned from his past record. Shaheen grew up in Como, Miss., the son of a well-to-do doctor of Lebanese descent who defied prevailing racist convention by opening his door to both black and white patients. Imbued with a strong sense of justice and patriotism, Shaheen attended Taft, an elite prep school in Connecticut, Yale University and law school at Vanderbilt. After clerking for a federal judge and practicing law in Tennessee, Shaheen returned to his hometown, where he was elected mayor. Shaheen joined the Justice Department in 1973, where he would win the respect of Attorney General Edward Levi for his work investigating FBI counterintelligence excesses. In 1975, on Shaheen's suggestion, Levi created the Office of Professional Responsibility, which instituted controls over all FBI investigations, and chose Shaheen to lead it.

Shaheen soon won a reputation for cheeky unflappability -- best illustrated by his first meeting with Levi's successor, Attorney General Griffin Bell, in 1977. Journalist Stuart Taylor Jr., recounting the meeting in an article last October in the American Lawyer, noted that Shaheen had just issued an unflattering report about the FBI's surveillance and harassment of Martin Luther King Jr., generating reams of bad press. He was summoned to the attorney general's office, where, according to Taylor's account, an agitated Bell said, "Why did everyone on the Hill get a copy of this report before I did? And why has everyone else read the whole thing when I'm only on page 38?"

"As to the first question," Shaheen reportedly replied, "your predecessor ordered that the report be sent to [Congress] in the final weeks of his tenure. As to number two, maybe you just read slowly."

According to Taylor, "The third man at the meeting cringed, and Shaheen braced himself, 'certain that I was about to be terminated.' Instead, Bell
exploded into laughter."

Remarkably, Shaheen has probed or criticized nearly all of the eight attorneys general he has served under, yet he has managed to maintain the respect of all of them, except for one -- George Bush appointee Richard Thornburgh, whom Shaheen investigated for trying to curtail a probe into alleged leaks by two of Thornburgh's aides. As Taylor notes, Shaheen could have dropped the matter to please his boss, but instead he pressed forward. The matter was resolved when the aides were reassigned and Kenneth Starr, then the solicitor general, wrote a letter that effectively finessed the question of whether the aides had committed any crime. Since then, Shaheen has described Thornburgh as a "sworn enemy."

Shaheen also did not back down from an investigation into the alleged ethical improprieties of FBI Director William Sessions -- a probe that led to Sessions' firing. In 1996, while working under Clinton appointee Reno, Shaheen demonstrated his independence once more when he accepted a request by Independent Counsel Starr to investigate the so-called Filegate scandal, in which the FBI improperly gave to White House officials the files of hundreds of their Republican predecessors. No disciplinary action resulted. In congressional testimony, Shaheen also has criticized the bunker mentality of the Clinton White House in connection with the investigation into the steps taken after Vincent Foster's suicide.

"My impression is that if Shaheen comes away thinking that whoever he's investigating is basically an honest guy trying to do an honest job, he cuts him the benefit of the doubt on marginal calls," says Taylor, now a columnist for the National Journal. "But if he thinks that somebody is pursuing a personal agenda of any kind, and certainly if he thinks somebody got dirty money to David Hale, he'll go after him like a bulldog. In other words, I don't think he's a guy who is moved by little technicalities. He's a guy who is looking at the big picture."

Shaheen has never said publicly what he thinks of Starr's investigation of Clinton, but he has expressed serious reservations about the sweeping nature of the independent counsel statute, under which Starr operates.

"The provisions are immoderate," he said in his Los Angeles Times interview. "Once the provisions are invoked, we have to surrender everything. There's not enough discretion left in the (Justice) department to do a little more fleshing out of the allegations before invoking the irretrievable positions. That sets in motion all the powers and prerogatives of an independent, separate, mini-Department of Justice and all the authority that carries with it."

Privately, however, Shaheen is known to regard Starr as inexperienced in such investigations and being in the thrall of aggressive deputies who could use more supervision. Shaheen is said to have concerns about the legal and technical underpinnings of Starr's investigation of the Lewinsky affair, particularly whether he was acting properly when he wired Linda Tripp to secretly record Lewinsky's allegations of an affair with Clinton and when his deputies questioned Lewinsky without her lawyer present. But Shaheen is said to feel that if Starr can come up with strong evidence of obstruction of justice by the president, such technical missteps probably will be overlooked.

Associates describe the personal relationship between the two men as cordial. Clearly, Starr respects Shaheen enough to have sought him out to conduct the witness-tampering probe. A Shaheen associate says it would be a mistake to conclude that Shaheen's acceptance of the post has put him in the Starr tank. "They are not buddies. They come from separate worlds," observed one former Justice Department official.

The critical question about Shaheen's investigation is what powers he has been granted to perform his work. Does he have the authority to compel both government and nongovernment witnesses to testify under oath? Can he subpoena witnesses to testify before a grand jury, and if so, which one? Starr's Arkansas grand jury already has disbanded, leaving only the Washington grand jury that is hearing testimony in the Lewinsky affair. Can the Washington grand jury hear the testimony of Shaheen's witnesses, or does a new grand jury have to be empaneled?

If Shaheen's probe is modeled less on a criminal investigation than on the kind of internal inquiries that he conducted at the Justice Department, he may not be adequately armed to complete his mission, say some observers. "It wasn't a problem when he was dealing with Justice Department employees because he could compel them to talk to him on pain of dismissal or other administrative sanctions," says Bromwich, the inspector general. "But many of the key witnesses are people outside the Justice Department and the sphere of the independent counsel's office. So in the absence of subpoena power or the ability to use a grand jury, it's not clear to me how the investigators can make people talk to them."

Webster says Shaheen would not have subpoena power unless Starr deputizes him. It is more likely, he says, that Shaheen will have to go to Starr to subpoena his witnesses and compel their testimony under oath. That structure will work "as long as Mike is getting what he wants," Webster adds.

A former Justice Department official says such an investigation is not as constrained as it sounds. "You really can find out a lot unbeknownst to Mr. Starr," said the former official. "Remember that when an FBI agent interviews someone, that person is under requirements to tell the truth. And if that person doesn't tell the truth, Shaheen could use lie detector tests."

Shaheen is currently on vacation in Europe with his wife, Polly Dammann, an attorney in the civil division of the Justice Department, and their two sons. He will return to the capital later this month.

In appearances on several Sunday TV news shows, Starr's spokesman Charles Bakaly confirmed that Shaheen's investigation has already begun, but the independent counsel's office is saying little more. Bakaly did not respond to numerous telephone calls and a detailed fax from Salon, asking him to define Shaheen's exact powers in the witness-tampering probe.

Nevertheless, the public spotlight already has begun to focus on Shaheen. Some at the White House are now casting him as a judicial mop-up man, arriving on the scene to administer the coup de grâce to Starr's Whitewater probe following a recent string of adverse court rulings for the independent counsel. Other Starr critics in Washington regard Shaheen in more heroic terms -- as the Gary Cooper character in "High Noon," strapping on his holster for one last confrontation with the bad guys.

But as his investigation proceeds, Shaheen is likely to take fire from both sides of the Starr-Clinton divide. If he finds evidence of witness tampering or other crimes as part of his probe, Starr's supporters are likely to remember Shaheen bitterly as the one who let Clinton get away. If his investigation turns up dry, Shaheen can expect the president's partisans to vilify him as Starr's poodle, more lapdog than watchdog.

"As someone who has worked in the background all his career, Mike may find the personalization of his investigation uncomfortable," said Webster.

"Given the current environment in Washington, it's hard to believe that someone would call them as he sees them," added one of Shaheen's former Justice Department associates. "But that is exactly the power that Mike has. He's gone after Democrats, Republicans, people of every stripe. He's incredibly honest, incredibly professional and -- I know it sounds trite -- simply inclined to do justice."

By Jonathan Broder

Jonathan Broder is Salon's Washington correspondent.

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