The bitter end

The mistrial in the Steele case marks Kenneth Starr's induction into the American hall of shame.


Jack Hitt
May 8, 1999 8:00PM (UTC)

Independent counsel Kenneth Starr lost his last battle on Friday when a federal judge declared a mistrial in the case of Julie Hiatt Steele, the woman Starr indicted for changing her mind and refusing to corroborate Kathleen Willey's tale of sexual harassment by President Clinton. Steele declared victory in her grudge match with Starr. "I think it's time to celebrate,'' she told reporters outside the courtroom. "It's time to start my life again."

Starr's deputy in the case promised to seek a new trial, but such a move is unlikely. The independent counsel's office made the same threat after its prosecution of Whitewater figure Susan McDougal ended in mistrial, but it never followed through. Starr may pop up again -- prosecuting Webster Hubbell, even trying to torment the Clintons after they leave office. This would not be a good idea. As Julie Hiatt Steele tries to start her life again, it's time for Ken Starr to do the same. But he'll likely have a harder time of it.

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When Starr appeared before the Governmental Reform Committee in April to denounce the statute that empowered him, he looked scared. If you caught the performance, then you know what Im talking about. There was Americas most repressed pornographer trying to clamp on his furrowed mask of constitutional solemnity, while occasionally flashing his smarmiest hey-little-girl-would-you-like-to-make-a-nickel smile. But then youd see it flash by, momentarily: the flaring eyes, the involuntary mammalian expression of absolute fear.

And why shouldnt he be scared? Starr knows perhaps better than anyone that nothing -- but history -- awaits him now. He knows that the bell will toll, and its gonna toll for him. You can almost feel it, the one part to this story that has yet be carried out. Its why Starr is clinging to his office. He is desperately devising an exit strategy that wont entail his own persecution. But its ineluctable. Im not talking about a legal matter or some ethical situation. More than anything this is an historical imperative.

Wherever Whitewater began, it ended not as malfeasance, not as politics, not as sex, not as perjury, but as a classic American morality play between absolutists and humanists, between people who believe that every last speck of sin must be cleansed from our souls and people who understand that we must live with an unsquarable degree of venality in our lives.
Its the battle between the Puritans who knew there was only one right way, and the Quakers who believed that different people could find virtue by unlike paths. Its the battle between those who believe forgiveness is something only God dispenses, and those who believe that humans ennoble themselves by granting it to one another -- between those who crave the law and those who look to the quality of mercy. Its the battle between Joseph McCarthy, who insisted upon destroying even the lamest screenwriter who had swaggered in his youth by signing up as a "communist," and those who saw blacklisting as the extermination of the weak. Between those who believed that every last witch must be driven from Salem and those who saw witchhunting for what it was.

Ill bet Ken Starr knows the fate of Salem's Rev. Samuel Parris. After the witch trials ended, his congregation fired him. He spent the rest of life wandering the earth wearing the rent garments of a common merchant. And Joseph McCarthy? After Fred Friendly showed him on CBS television laughing his gappy teeth at the suffering of the powerless and picking his nose with his thick buttery fingers, he was censured by his own Senate. McCarthy withdrew to Wisconsin, to stew upon his abandonment and to watch his name slip into the dictionaries as a monstrous adjective. He died a drunk.

Ken Starr has good reason to be scared.

Starrs humiliation has already begun. He was once one of the most-respected conservative judges in the country, a man on par with Richard Posner or Charles Fried. Like anyone in that position, he longed for his seat on the Supreme Court -- now as out of reach as the moon. He must retreat to the embrace of the extremists, whom he has so artlessly served as proxy these past five $50 million years. There hell join the lineup of Robert Bork, Oliver North and William Bennett on the rubber-chicken moral-crank circuit, entertaining Holiday Inns full of angry federalists with tales of his quixotic derring-do and his exquisite virtue.

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A pretty unpleasant curse, but its only the beginning. Looking ahead, three other ordeals await Ken Starr.

The first is water torture. All of his current cases have sputtered -- Susan McDougal, Julie Hiatt Steele (not to mention President Clinton's impeachment acquittal). Given Starrs overreaching tendencies, it already appears that almost any old 12 folks you pick are ready for some good ol fashioned American jury nullification. Hardly a news cycle spins round that some press item doesn't appear that must torment Starr like a hot poker. The press hooted contemptuously when it was learned that Steeles daughters boyfriend was asked in the grand jury whether hed had sex with her.

When Steele flew to Little Rock last month to testify on behalf of McDougal, these two Whitewater supernumeraries snuggled arm and waist and sashayed across Capitol Avenue in a sassy perp walk that had the papparazzi moaning with indecent pleasure. After McDougal was acquitted of one of Starrs charges, she publicly dined on canteloupes and strawberries while draining flutes of Taittinger. The girl gloats as menacingly as Bette Davis. In a stage whisper, she confided to her fiance about what was next: "Our options are just worldwide, aren't they, dear?" Her lawyer added: "The office of independent counsel is full of more crap than a Christmas goose." More Taittinger!

These little pearls roll out of the papers about once a week. You can't stop reading.

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The second torture for Starr may come at the hands of Janet Reno, who could still fire him. Her investigation is still underway, but more importantly, so is Judge Norma Holloways. If the judge, who ruled so often in Starrs favor, determines that the independent counsels office violated the law by leaking, then Reno would have clear and wide ethical room to give Starr the heave-ho. The added element of suffering then would be the widespread indifference from editorial pages all over the world -- all except the Wall Street Journal which (I predict here) will keen and howl, make the inevitable comparison to the Saturday Night Massacre, and then call impotently for an investigation of the investigation. Those of us who delight in reading the editorial page of the Wall Street Journal will listen carefully for something that sounds like a spoon banging furiously on a high chair.

The last method of torture will be next years election. Republicans are desperately trying to get American minds off the impeachment proceedings (and so is Clinton). Even though Starr is not cooperating by dragging out these last irrelevant prosecutions, Republican consultants swear that American memories are short. Well see.

The impeachment scandal tarnished everyone who caused it. On the Democratic side, that would be: President Clinton. On the Republican side that would be: The United States House of Representatives. I suspect the vote to impeach will come back to haunt the majority that brought this show trial to the American public. Why? Because no one in Washington has yet acknowledged the only group that wielded the enormous constitutional power given it soberly and fairly -- the real judge in the impeachment matter.

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That would not be Ken Starr, who was more a glorified detective. The House served hastily as prosecutors and the Senate perfunctorily as jurors. The judge was not William Rehnquist, who never rose above his role as functionary to the House parliamentarian. The judge was the collective will of the American voter, we the people.

Time and again, the William Bennetts and Rush Limbaughs of the world trashed the voters judgment with the charge that the people just didnt care about the rule of law. That they were morally reckless. That they were not paying attention. But as every television-ratings survey revealed, they were extremely tuned in. They long ago rendered a judgment. It was not sloppy nor apathetic nor immoral. But rather nuanced, actually. They understood that Clinton unctuously skirted the law and that he lied to them. They also recognized the basic unfairness of Starrs unaffiliated army of dirt devils and the greater danger to personal freedom of Starrs casual use of RICO-like anti-mob tactics to track down and corner one individual, even if that person was the president.

So they reached their judgment, first by humbling Bill Clinton. The American voter could have short-circuited the impeachment process, had a million people shown up on the Washington mall last December. The House vote might have gone the other way; the Senate certainly would have cut short the trial. But Clinton has few loyalists among American voters willing to do such things. So they let it happen: They let Congress humiliate Clinton. Mister president, American voters call their leader. And nothing more.

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And Congress? Have you noticed how they tremble a bit these days, that tremolo in their voices? The politicians tried to boast that they defied the polls. But it was with all the braggadocio of school children whistling past a graveyard. Those polls didnt change after the first day or after the first week. Month after month they stayed the same, then year after year. The last election ratified their meaning. These were not polls. They were never polls. Taken together, unchanged over time, this was the will of the American people, fully informed, casting judgment -- precisely what the Constitution grants them the liberty to do, requires them to do.

The American voter has reminded the custodians of our institutions exactly to whom they owe their prestige. Think about how puny the Congress and the president seem these days standing in the shade of the electorate's unaltered and infallible judgment. They have punished Clinton, but granted him mercy if only to frustrate the stomping fury of congressional Rumpelstiltskins. When George Bush lost the election in 1992, he gracefully replied, "The majesty of the American voter has spoken, and I respect their decision." Well, I suspect theyll be speaking again soon enough.

And what they will say will be another reminder that the sovereign in this country is not our greaser president, not the cross-eyed managers, not the frothing prosecutor, and not the excitable media. All of them are supernumeraries in this democracy.

The man whose name will forever attach itself to this lesson is Ken Starr. And, if Congress, after only three terms of Republican leadership, becomes Democratic next November -- can any devil in hell imagine a more bitter end than to be the single man who herded the Republicans back into the wilderness of being a minority party?

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No matter, the story will finally come to an end. And regardless of how many times Mrs. Starr tells interviewers about the pleasure of hearing her husband recite the lyrics of hymns, the rest of the country will be telling another story. Summed up, it will go like this: Once upon a time, there was a man named Ken Starr. He was very powerful and everybody was afraid of him, but he was defeated. Now he wanders in the wilderness, alone.


Jack Hitt

Jack Hitt is a contributing writer to the New York Times Magazine and PRI's "This American Life."

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