Under oath, in the glare of the camera lights, facing down his inquisitors, independent counsel Kenneth Starr sounded a lot like President Clinton before Starr's grand jury -- forgetful and evasive -- as he testified before the House Judiciary Committee for more than a dozen hours on Thursday.
As the questioning by Democratic committee members grew tougher -- moving into the touchy areas of Starr's leaks to reporters, contacts with Paula Jones' lawyers and relationship with Linda Tripp -- the independent counsel increasingly deflected questions by professing, "I can't recall," "to the best of my recollection" and "I'd have to check the record."
Arguably the most charged moment in the hearing came late in the day, when Rep. Zoe Lofgren asked Starr if he had been told in November 1997 about the existence of tape recordings "on which a woman claimed to have had sexual contact with President Clinton." Starr, who claims he learned about Tripp's tapes of Monica Lewinsky in January 1998, seemed flummoxed.
"I am not recalling that; the specificity of your question suggests that there may be information and I'm happy to respond to information," Starr began.
"Is there any possibility that the answer is yes?" Lofgren responded.
"I have no recollection of it, but I am happy to search my recollection. This is the first time anyone has asked me such a question," Starr said. But Committee Chairman Henry Hyde cut off Lofgren's questioning -- she had reached her allotted five minutes -- before the independent counsel could respond.
Starr controlled the hearing for its first six hours, reading from the 58-page testimony that had been leaked the night before, which he said made the case that Clinton had abused his office and obstructed justice in trying to keep his affair with Lewinsky a secret. He defended his aggressive questioning of Lewinsky in January, keeping her for almost 13 hours at the Ritz-Carlton, by describing her as "a felon in the middle of committing another felony." But House Counsel Abbe Lowell drew some blood with an argument that would be reprised by other Democrats all day. Its essence was: Kenneth Starr, you are no Leon Jaworski. Lowell quoted the renowned Watergate prosecutor to open his questioning, on the lessons of his investigation into Richard Nixon's wrongdoing:
"The central key to the entire success was not accusing anyone," Jaworski wrote. "What we did is simply carried forward what the facts were, passed them on, not making an effort to interpret them, not making any sort of an effort to construe or to say what we thought it showed and let it be completely nonaccusative."
Lowell then tore into Starr and his impeachment referral, which he dubbed "the referral with an attitude," questioning Starr's use of inflammatory terms like "premeditated"; "concocted false alibis"; "deceived"; "pattern of obstruction"; "lying under oath"; "perjury" to describe President Clinton's actions -- "words you will never find in the report of Leon Jaworski when he was reporting the same kind of evidence to the Congress 24 years ago," Lowell told Starr.
Later that day, Lowell's complaint was backed by a surprising ally, Starr ethics advisor and former Senate Watergate Committee chief counsel Sam Dash, who resigned from Starr's office to protest his testimony. "You have violated your obligations under the independent counsel statute and have unlawfully intruded on the power of impeachment," Dash said in a letter to Starr obtained by The Associated Press.
Lowell and Democrats grilled Starr on his and his law firm's connections with Jones' lawyers; when and how he learned about Tripp and her tapes; his office's leaks to the media; his treatment of Lewinsky and most of the dozen key questions about his investigation laid out by Salon on Tuesday.
Starr's testimony confirmed what critics alleged when his sex-filled report was sent to Congress in September: There will be no impeachment referral in the Whitewater matter, the topic that inspired the $40 million-plus investigation. Starr revealed he had prepared a Whitewater-based impeachment referral in 1997 but dropped it because of insufficient evidence.
Salon has learned that Starr considered sending an impeachment referral regarding Whitewater as late as spring 1998, but put it on hold pending the completion of a federal investigation into payments to key witness David Hale by Clinton-hating conservative political activists, first reported by Salon last March.
Starr faced no questions about his relationship to Hale, but he was grilled about many of the other alleged improprieties of his investigation:
- On the question of whether he knew his law firm had discussed representing Paula Jones, Starr answered, "my best recollection is no."
- He insisted Attorney General Janet Reno should have already known that he had consulted with Jones' lawyers on the question of presidential immunity, and didn't need to be told that when she authorized expanding his probe into the Jones-related Lewinsky matter.
- Starr repeatedly insisted his office first learned about Linda Tripp and the Lewinsky tapes on Jan. 8, 1998 although they were known about in conservative circles as early as November 1997.
- He denied knowing his former law partner and conservative political activist, Richard Porter, helped steer Tripp to his office. "There may be facts of which I am unaware that I should be aware of before I form a complete response," he added.
Starr hedged on the question of whether he knew his law firm had considered representing Jones, as the following exchange with Lowell reveals:
LOWELL: Neither you nor any of the officials in your office told the attorney general that before you became the independent counsel, your law firm -- Kirkland and Ellis -- was actually contacted to represent Paula Jones and eventually helped her attorneys to find the lawyers she chose.
STARR: Well, you're assuming that I had the benefit of all this information.
LOWELL: ... I asked whether you had or any of your office members told the attorney general that your law firm -- that you were still a member of and getting a salary from -- had indeed been sought out to be Paula Jones' lawyers. I understood you saying you may not have known that. My question is you're telling me that Richard Porter, your partner, did not ever inform you that he had been asked to consider representing Paula Jones and had in fact assisted her in getting the attorneys she ultimately chose. Is that what you're saying?
STARR: Well, my best recollection is no. I know Richard Porter. I've had communications with him from time to time. But in terms of a specific discussion with respect to what the law firm may be -- may be doing or may not be doing I'm not recalling that specifically, no.
LOWELL: ... Did it not occur to you that you should tell the attorney general, who was making a decision about whether you were an independent counsel, that your law firm, Kirkland and Ellis, in addition to being asked to be Paula Jones' attorney, was providing legal advice -- free legal advice -- to a conservative women's group called the International Women's Forum who were thinking about participating in the Paula Jones case itself? Did that not occur to you either?
STARR: Well, again, it's not whether it occurs or not. I did have discussions with the -- and I think it's called the Independent Women's Forum -- as to whether they would, in fact, file an amicus brief, again strictly on the constitutional issue, not taking a position on the merits. But the president, through his very able lawyers, had raised a very important question. Does the president of the United States enjoy immunity? Everyone was talking about it and no one was talking about it particularly quietly. It was a matter of vigorous debate. And the fact that I had these discussions had all been, to the best of my knowledge, part of the public domain. That is to say they were reported.
I do think it's unfair, I really do, to suggest that someone should, when circumstances are moving so quickly, go do a Nexis search, making sure that everything is in the public domain and the like, especially under circumstances that were not only fast-moving, but it was very clear that what we were investigating were serious crimes of perjury that had nothing to do with the constitutional immunity of the president.
LOWELL: Mr. Starr, you're suggesting that when you told the deputy attorney general that he had to move with haste because this investigation was fast-moving, that you had no responsibility to also inform the attorney general about these contacts that you and I are talking about, which might make the attorney general, as you pointed out, have a choice to make between giving the investigation to you or giving it to somebody whose independence, bias and involvement in the case was not questioned.
STARR: Well, I utterly disagree, with all respect, with your premise -- that to be involved on an issue of civil law and constitutional law in any way suggests a predisposition more generally. I would take the position that the president of the United States does not enjoy constitutional immunity from suit regardless of who the president is. It has nothing to do with the identity of the occupant of the office. It has everything to do with what the presidency is and the nature of our relationship to one another as individuals and whether we are all equal under the law.
Lowell also dug into the question of how Lewinsky was treated during her marathon Jan. 13 interrogation by Starr's deputies, and whether she was free to leave:
LOWELL: You state in your press statement that she was repeatedly told she was free to leave and that she did so several times. Do you not think it would have been a "less distorted picture," to use your words, to know that when she left the room, she was followed by agents and that she swore under an oath that she -- quote -- "felt threatened that when she left, she would be arrested," end quote. Don't you think that completes the picture a little bit?
STARR: I think her perception was incorrect. We made it clear to the witness that she was, in fact, free to leave. And the Ritz-Carlton, shall I say, is a fairly comfortable and commodious place ... She was encouraging others to join her in committing perjury. She was, as the information came to us, a felon in the middle of committing another felony.
LOWELL: She wasn't likely, after being brought up to your room for 10 hours, to be committing any felonies anymore after that, was she? ....
STARR: Well, of course, we did not know. We had no way of knowing what she was going to do. What we did do is this. That we had a consensual recording. We shared the results of that consensual recording with the Justice Department. We informed the Justice Department of what our intention was at the Ritz- Carlton. We then proceeded in a very professional way.
Rep. Barney Frank zeroed in on the question of leaks from Starr's office to reporters. In October Judge Norma Holloway Johnson found 24 instances of "prima facie violations" of the independent counsel statute governing the privacy of grand jury proceedings -- leaks about witnesses' testimony to reporters who are generally friendly to Starr.
FRANK: Mr. Starr, Judge Johnson has found 24 instances of prima facie violations by your office of Rule 16. Are you aware of any member of your staff who in fact committed a violation, as defined by Judge Johnson?
STARR: We do not think that we have violated [grand jury rules on secrecy] at all.
FRANK: Specifically on the 24 instances, are you aware of any member of your staff who committed a violation as Johnson defined it?
STARR: Well, with all respect, I think that is an unfair question. And the reason I do ...
FRANK: All right. I'll withdraw it. Mr. Starr, you're the expert on unfair questions. If you tell me it's an unfair question, I'll withdraw it. So let me ask you again. Did anybody on your staff, to your knowledge, do the things which Judge Johnson has included in her list of the 24, understanding that you may think that if they did them, they weren't violations? But did anybody in your staff give out that information on any of those 24 instances?
STARR: There are a couple of issues or instances in which we issued a press release where we do have -- we clearly issued a press release with respect to certain matters. But may I say this? I am operating under a sealed litigation proceeding ...
FRANK: Mr. Starr, if you're suggesting that you can't answer under this particular proceeding -- it's sealed at your request to the extent that it's sealed at all. So you could waive it. That is, Judge Johnson granted a motion for an open procedure. You appealed this to the Circuit Court and they closed it up. So if you do not object, nobody else will.
STARR: No, Mr. Frank. It is sealed by the chief judge, based upon her determination of ...
FRANK: (OFF-MIKE) She granted a much more open proceeding, and you appealed that and got the Circuit Court to severely restrict the procedure on the grounds that hers was too open. Isn't that true?
STARR: Congressman Frank, what she did was to provide for a procedure that didn't provide -- quote -- "openness." It provided for an adversarial process, and this is all in the public domain. But from this point forward, no, she is the custodian and the guide with respect ...
FRANK: Would you ask her to release that? I think there's a severe -- important public interest in dealing with this unique question. It goes to the credibility of a lot of what you've done. Would you then join -- maybe everybody would join; maybe the White House would join and others -- in asking Judge Johnson to relax that so we could get the answers publicly, because I think there's a lot of public interest -- legitimate interest in this?
STARR: I am happy to consider that, but I'm not going to make, if -- with all respect, a legal judgment right on the spot.
Rep. Zoe Lofgren also aimed at the question of leaks, but her questioning veered off when she raised the issue of when Starr knew about tapes of a woman who's had an affair with Clinton:
LOFGREN: There's no question that the president did not tell the American people the truth about Ms. Lewinsky. He admitted that. We allege in the report that he lied under oath. But I note that you, Mr. Starr, are under oath yourself this morning, and on Page 36 of your testimony, you swear that you go to court, not on the talk show circuit. This very morning, you appeared on "Good Morning America." Isn't that a false statement under oath? And should you be prosecuted for perjury because of this false statement?
I do want to pose two -- really three quick questions. First, when did you first hear any information to the effect that a tape recording existed of a woman, any woman, who claimed to have had a sexual contact with President Clinton? Two, in or about November 1997, did you discuss with any person the possibility that a tape recording might exist on which a woman claimed to have had sexual contact with President Clinton -- yes or no.
And finally, we all know there was an investigation into leaks from your office to the press. Reporters promise confidentiality to sources and they're very serious about that. I'm asking you today: Will you release the press from their vow of confidentiality to you and your deputies so that this can be fully investigated?
STARR: The second question I frankly did not understand. I honestly did not get. I was trying to take notes.
LOFGREN: I'll read it really quickly. In or about November 1997 did you discuss with any person the possibility that a tape recording might exist on which a woman claimed to have had sexual contact with President Clinton?
STARR: I am not recalling that, the specificity of your question suggests that there may be information and I'm happy to respond to information if that is -- if that's ...
LOFGREN: Is there any possibility that the answer is yes?
STARR: I have no recollection of it, but I am happy to search my recollection. This is the first time anyone has asked me such a question, and you are asking ...
LOFGREN: It was possible it was before January then?
STARR: Yes. But you said very specifically November of 1997, so that's ...
REP. JAMES SENSENBRENNER: Mr. Chairman ...
STARR: I will search my recollection.
SENSENBRENNER: Does the young lady have information that the independent counsel's office had this information?
LOFGREN: I would like an answer to my question. I've been asked these questions and I think the gentleman is under oath and he can answer the question.
SENSENBRENNER: Does the young lady have information to this effect?
LOFGREN: I'm asking the question. I'm not a witness.
HYDE: The witness will respond.
STARR: Yes. I do not have a recollection of that, but I am happy to now search my recollection and to go back in light of the specificity of your question and provide the committee with the information.
LOFGREN: So you would agree to answer that under penalty of perjury if we followed up in a written request after you've had time to reflect upon it?
STARR: Well, I am happy to consider any question, and if it is viewed as germane to what is before you -- if this is an effort to try to search my recollection and to see if there's something that perhaps I'm not able to recall ...
LOFGREN: If I may...
STARR: Excuse me. May I answer this question?
HYDE: The young lady from California will allow Judge Starr to answer the question without interruption.
STARR: Yes. I beg your pardon. It does seem to me that if there is an issue that you view as germane I am happy to consider it, and I will evaluate it. I've given you my best answer now. Now with respect to ...
LOFGREN: I believe it is germane and I would like an answer to the question.
HYDE: The young lady from California asked Judge Starr three questions. Could she please give Judge Starr the courtesy of allowing him to answer the questions.
LOFGREN: I would love to get an answer to the questions.
STARR: I have concluded what I need to say, thank you.
HYDE: The witness has concluded. The young lady's time has expired.
U.S. Rep. Maxine Waters tried to continue Lofgren's line of questioning about media leaks in her five minutes.:
WATERS: I'd like to help out my friend from California, Congresswoman Zoe Lofgren. She asked you, would you be willing to release the press from their confidentiality pledge to you and your office so that we can get the leaks investigated that are in question.
STARR: I believe that it would, Congresswoman Waters, be unwise and inappropriate for me at this time in this setting -- and I'm delighted to pursue this in executive session.
WATERS: That's OK. Your answer today is you would be unwilling to do that.
STARR: I believe it would be unwise at this time, with litigation under seal still proceeding. I'm very respectful of the orderliness of that proceeding and it seems to me that that ...
WATERS: OK. I just don't want to take up a lot of time with it. I just wanted to know if you would do it or not. The answer is no.
Finally, 10 hours after Starr began, Clinton attorney David Kendall began his questioning. The two men dislike one another, and it showed. It was the first time all day Starr dropped his air of practiced geniality and raised his voice. He objected to Kendall's reference to Starr's office "holding" Lewinsky for questioning:
STARR: You said she was "held" ... and that's unfair to my investigators.
KENDALL: During her "sojourn" with your investigators ...
Kendall hammered at his evasiveness on the question of when Starr learned about Tripp and her tapes.
KENDALL: When did you first learn there might be an audiotape about the president and a young woman.
STARR: I've already had questions on this. If you're talking about Monica Lewinsky, the first I knew to the best of my recollection was in January 1998 ...
KENDALL: Were you aware of how Ms. Tripp came to communicate with your office in January 1998
STARR: I was at an American Bar Association Journal [convention] when an initial contact was made with one of the associate independent counsels. That information was conveyed to a deputy independent counsel who said, "Information comes in the front door." We were then called on Jan. 12 by Linda Tripp. I was made aware of the telephone call shortly thereafter.
KENDALL: Were you aware your partner Richard Porter had played a role in steering Ms. Tripp to your office.
STARR: I know Richard, I'm not aware of what his role was. I've since read what his role was. I did not have any involvement or participation in any way with what he did. There may be facts of which I am unaware that I should be aware before I form a complete response.