Mistakes were made

A close reading of the Starr Report shows that the independent counsel cut several legal corners too many when laying his impeachment trap.


Gene Lyons
October 5, 1998 11:00PM (UTC)

Rep. Henry Hyde assures the American people that the impeachment inquiry of President Clinton will demonstrate that "no person is above the law, nor beneath the law." In the next breath, however, Hyde insists that there will be "no investigation of the investigation" -- no inquiry, that is, into the motives and methods of independent counsel Kenneth Starr. These goals are in hopeless conflict. If Clinton can't question how Starr's evidence against him was gathered, he'll have been denied what the Constitution defines as "due process of law," his basic right as an American citizen.

In an editorial, the New York Times also endorses the idea that the president has fewer rights than the rest of us. The Starr Report buried Monica Lewinsky's testimony that Clinton never asked her to lie, nor did he promise her anything to keep their affair a secret. Starr's decision to ignore these valuable bits of exculpatory evidence are dismissed as "legal klutziness," by the Times, which concludes that this "does not add up to prosecutorial misconduct. The impeachment process is not governed by the rules of criminal law."

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Klutziness implies clumsiness. Are we to believe Starr left out Monica's direct denial of the central premise of his investigation by some sort of clumsy accident? In probing Clinton's sex life, the Times says, Starr was merely following orders, "as an officer of the court, operating under Justice Department aegis and the supervision of three federal judges."

But what if Starr obtained his authority to investigate the Lewinsky matter by illegitimate means? What if corners were cut, falsehoods disseminated and laws broken in a manner decidedly more sinister than klutzy? Would that matter? Because the evidence of all of this is there, much of it in the Starr Report itself, although it does require very careful reading to dig it out.

According to what has been presented to the public, Starr offered four main pieces of evidence to Attorney General Janet Reno and the three-judge panel in order to get the original OK to expand his Whitewater inquiry into the sex scandal. We now know that there is something critically wrong with each one of the four pieces:

1. Starr argued that Vernon Jordan's effort to find Monica a job resembled his Whitewater "hush money" investigation of Webb Hubbell, and therefore represented a possible criminal pattern. Trouble is, Starr indicted Hubbell for tax fraud (an indictment since dismissed) precisely because he never found real evidence of "hush money." Suspicion isn't evidence. If it were, Starr's investigation would have no legal boundaries whatsoever. According to Brill's Content, the OIC may also have withheld exculpatory information from Janet Reno: Specifically, that Jordan's efforts began long before Monica was subpoenaed in the Jones case, and that Jordan was an old friend of Monica's mother's fianci, Peter Straus, and therefore may easily have had innocent reasons for helping Monica find a job.

2. Linda Tripp's tapes were recorded illegally, hence could probably not be used as evidence in an American court. Even more worrying, the Starr Report clearly states that two crucial phone conversations recorded by Tripp on Thursday, Jan. 15 -- two days after the FBI wired her lunch meeting with Monica, and one day before Starr received permission to proceed from the three-judge panel -- "were made under the supervision of the Office of the Independent Counsel." The report says the tapes, designated "Tape 22," show Monica telling Tripp that she and Clinton [would] tell the same story under oath -- a crucial bit of evidence, if true.

Tripp had previously been told by her lawyer Kirby Behre that surreptitiously recording phone calls was a felony in Maryland. Granted immunity by Starr on Jan. 12, she was then advised by the OIC to do some more taping on Jan. 15. In brief, she was acting as the OIC's agent. Did Starr have authority from the judges? He did not. Does any federal prosecutor have authority to deputize a civilian to violate a state law? Again, no. This is KGB territory.

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So how can Starr's team have been so reckless as to print the evidence in their report? Maybe they were gambling that the report would force President Clinton to resign. Also, to put this thing together, it's necessary to read footnote 1020, then follow its cryptic reference to "T-22" into Volume II, page 262, for the date and disclaimer. (I'm indebted to Jack Gillis of the University of Southwestern Louisiana for this research.) The issue takes on added significance in view of another footnote accusing Tripp of doctoring certain tapes and dubbing others.

3. Then there are the "talking points." Long presented as the "smoking gun" that would prove White House malfeasance, this document was actually written by Lewinsky herself at Tripp's urging. According to Monica's testimony, also discreetly edited in the Starr Report, Tripp phoned her on the morning of Jan. 14. Tripp told Monica that she was meeting her attorney Kirby Behre later that day, and asked for help in composing an affidavit.

The call was a setup. Unknown to Monica, Tripp had actually fired Behre on Jan. 9, and hired conservative lawyer James Moody. After sweating over a hot word processor all day, Lewinsky met Tripp after work in a Pentagon parking lot and handed her the so-called talking points. Their contents reflected Tripp's stated incredulity about Kathleen Willey's charges against Clinton. Also unknown to Monica, Tripp then took the document directly to Starr. The OIC immediately called Assistant Attorney General Eric Holder on his cell phone at a the Washington Wizards pro basketball game, setting in motion the process that gave Starr his investigative authority.

In short, the talking points never were evidence of anything except Tripp's deviousness. Yet for months they were treated like the Rosetta Stone. Did Starr ask Tripp to produce better evidence? Did he ask her how she got them? He had to. If she lied, that's a crime. If she told the truth, yet Starr's team encouraged the Justice Department and Janet Reno to believe that the talking points were something they weren't, wouldn't that be prosecutorial misconduct? Given that Monica would almost certainly have asked Tripp on Jan. 15 how the meeting with Kirby Behre went, it's going to be really interesting to see which tapes Tripp edited.

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4. In her Jan. 16 letter to the three-judge court, Janet Reno wrote that Monica "may have filed" a false affidavit, a statement that can mean three things to a lawyer. Either an affidavit may have been filed, may be false or both. Why such vagueness? Because Starr appears to have been making, and losing, another calculated gamble.

Lewinsky's lawyer Frank Carter had sent the Jones lawyers a copy of her Jan. 7 affidavit on Monday, Jan. 12. Carter informed them that unless he heard from them by Jan. 15, he would file a motion to quash her subpoena with Judge Susan Webber Wright's court in Little Rock. On Jan. 16, he sent the Jones lawyers a copy of his motion. That same morning, in the apparent belief that Carter had filed with the Little Rock court, Starr's newly empowered agents grabbed up Lewinsky, held her for 11 hours, refused to let her phone attorney Carter, threatened her with 27 years in jail for breaking federal law and tried to get her to wear a wire (she says) into the Oval Office.

But the motion hadn't been filed. An affidavit has no legal force until it's stamped by the court. Here's what the Starr Report says: "On January 16, 1998, Mr. Carter arranged for the overnight delivery of the motion to quash and the accompanying affidavit to Judge Susan Webber Wright's law clerk and Paula Jones' attorneys (1027)." Read the footnote, and there's another surprise. Starr's team may not have known it, but Little Rock courts don't accept faxed motions. The courthouse is closed weekends. Monday, Jan. 19, was a federal holiday. Thus the footnote: "Although the motion (and affidavit) reached the Judge's chambers on January 17, the file stamp date was January 20, 1998."

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In picking up Monica, Starr's zealous prosecutors jumped the gun by five days; a [probable] mistrial in any federal court in America. Follow the document reference in footnote 1027 to document number 921-DC-0000775, and what do you find? Well, no document. It's simply not there. But the documentary Table of Contents lists the source as the Campbell Law Firm, Paula Jones' lawyers. So how does a document provided to Starr by the Jones lawyers prove that Monica's affidavit reached Judge Wright's chambers on Jan. 17? It doesn't.

We know that Judge Wright saw the Lewinsky affidavit on Jan. 17, because Clinton attorney Bob Bennett produced a copy during the president's deposition. But how on earth did Starr's prosecutors know on Friday, Jan. 16, that Carter had sent it? Much less what was in it? On Linda Tripp's and the FBI's tapes, Monica was still saying she'd sign nothing until she had a job. (A lie, she's since testified.) That leaves only one possible source: the Jones lawyers, a clear violation of Judge Wright's stringent gag order, and possible evidence of collusion.

And what was the big hurry on Jan. 16? Why not wait until the affidavit was legally filed with the court? Simple: Starr's prosecutors had to spring their "impeachment trap" before Clinton testified and before Newsweek published, or lose the whole thing. Combine all this with Linda Tripp's briefing of the Jones lawyers on Friday, Jan. 16, and what emerges is the disturbing impression of a legalized coup attempt. Are the American people prepared to countenance that?

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Gene Lyons

Arkansas Times columnist Gene Lyons is a National Magazine Award winner and co-author of "The Hunting of the President" (St. Martin's Press, 2000). You can e-mail Lyons at eugenelyons2@yahoo.com.

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