WASHINGTON -- As the impeachment inquiry of President Clinton draws near, charges of misbehavior and abuse of office are also swirling around the president's chief nemesis: independent counsel Kenneth W. Starr.
Critics are questioning everything from the prosecutor's initial request for authority to investigate the Monica Lewinsky matter to his strong-arm tactics with witnesses to the sexually graphic and argumentative nature of his report to Congress.
Late last week, White House special counsel Greg Craig said some of Starr's actions could amount to "entrapment." Democratic Sen. Carl Levin of Michigan, accusing the counsel of exceeding his authority and violating Justice Department policies, said, "Kenneth Starr has placed himself above the law."
Indeed, Starr has done things no other special prosecutor has done, such as subpoenaing Secret Service agents and turning over to Congress unprecedented amounts of grand jury testimony, much of it salacious in nature.
Some of Starr's actions throughout the Lewinsky investigation have sparked inquiries of their own. A federal judge, finding evidence that Starr's office leaked secret grand jury material to the media, has recently ordered a "special master" to determine whether Starr violated federal laws and should be punished. The Justice Department, at the request of Clinton's lawyer, is reviewing Starr's actions in seeking permission to investigate the Lewinsky matter.
But some of Starr's aggressive and seemingly overzealous tactics may be more a reflection of the ambiguity and looseness of the independent counsel statute -- and more a matter of questionable judgment by someone who's never before been a prosecutor -- than clear-cut violations of law, say a number of lawyers and independent counsel experts.
"A prosecutor's power is constrained mainly by judgment," says Katy Harriger, a Wake Forest University professor and author of a book on independent counsels. "So when you say, 'exceeded his authority,' that authority is ambiguous."
Still, the president's allies hope that highlighting some of Starr's actions will blunt some of the potential damage to Clinton by undermining the credibility of the probe.
Polls suggest the White House could have some success with such a strategy. Starr is seen by many as a partisan prosecutor out to get the president. A New York Times/CBS News survey conducted last week showed that 75 percent of Americans think Starr's investigation was not worth the time and money.
If an analysis of Starr's activities has no impact on Clinton's fate, the intense controversy surrounding this investigation is likely to have other long-term effects, namely, the amending or even killing of the 20-year-old independent counsel statute.
To focus attention on the investigator, congressional Democrats are hoping to call Starr -- and possibly his associates -- to testify before the House Judiciary Committee, which is conducting the presidential impeachment inquiry.
They are interested in, among other things, whether Starr had a conflict of interest in taking on the Lewinsky investigation since he had contacts in 1994 with lawyers for Paula Corbin Jones, who brought a sexual misconduct lawsuit against the president and sought Lewinsky as a witness.
Many lawyers believe Starr would not have been given the authority to investigate the Lewinsky matter if he had disclosed to Attorney General Janet Reno his earlier contacts with the Jones team. For his part, Starr said his office "did not mislead the Department of Justice regarding relevant facts relating to its jurisdiction, or any expansion thereof."
Starr's defenders see the increased attacks on him as part of a White House strategy to "distract attention from the man who committed crimes," as Washington lawyer Theodore Olson, himself the target of a 1986 independent counsel probe, says.
Starr spokesman Charles Bakaly says any attempt to change the subject from Clinton's misdeeds will ultimately fail because "the facts the grand jury has gathered will remain the facts."
Even apart from his previous contacts with the Jones lawyers, Starr's initial request to Reno last January to expand his Whitewater inquiry to investigate Lewinsky's sworn denial of a sexual relationship with Clinton has raised questions -- and not just from Clinton allies.
Armed with the tapes that Linda R. Tripp secretly recorded of her conversations with Lewinsky, Starr convinced Reno that witnesses in the Lewinsky matter overlapped with his Whitewater probe.
'Dubious' bridge
Lawrence Walsh, the Republican independent counsel in the Iran-contra investigation, says the bridge to the Lewinsky matter that Starr used to win authority was "dubious," showed no evidence of criminal conduct by the president and undermined the legitimacy of the entire investigation.
"It's a threadbare claim of criminality that launched this whole thing," Walsh says. "I know I would not have gone out on a limb for Linda Tripp. I would have sent her to the U.S. attorney and said, 'I've got other things to do.' "
Harriger, too, believes "the eagerness with which Starr sought this case is troublesome." She points to independent counsel Arthur H. Christy, who, while investigating Carter chief of staff Hamilton Jordan for alleged cocaine use in 1978, stumbled upon allegations of drug use by another White House official, which he passed on to the Justice Department.
"The Justice Department said, 'Can't you do it?' He said, 'Not interested,' " says Harriger. (Both Carter aides were cleared of criminal wrongdoing.)
Bakaly defends the addition of the Lewinsky matter to Starr's portfolio, saying, "We didn't shop for or attempt to manufacture jurisdiction. It was Justice's decision to expand our jurisdiction."
Some legal analysts believe Reno and the three-judge panel that authorized the expansion of Starr's inquiry erred in turning over the matter to Starr, a Republican who had been outspoken in his belief that the Jones case against the president should go forward.
Harriger, a political science and law professor, notes that Reno agreed to give the Lewinsky matter to Starr in a matter of hours, without the standard preliminary reviews -- which generally take up to four months.
Many have also criticized Starr for his report, saying the independent counsel law instructs a prosecutor to turn over to Congress "information" of potential wrongdoing, but not make arguments for impeachment as Starr did.
Levin said the Starr report "violates almost every one of the standards" established in the Watergate inquiry. In approving the transmittal of a Watergate grand jury report to the House, Judge John Sirica said the report "draws no accusatory conclusions contains no recommendations. The report is a simple and straightforward compilation of information gathered by the grand jury, and no more."
Even so, Starr's decision to draw conclusions -- "The President's testimony strains credulity. The President could not have believed that he was telling the truth" -- was not a violation of the independent counsel statute, say legal ethicists.
"Why he wrote the report the way he wrote it raises issues of judgment, but not misconduct," says John Q. Barrett, a former associate independent counsel and now a professor of criminal law and legal ethics at St. John's University School of Law.
Expanse of law
Some legal scholars say the expansive nature of the independent counsel law itself is responsible for any excesses that Starr's critics cite, including his subpoenaing of Lewinsky's mother, records of her bookstore purchases and Secret Service agents.
"The nature of this institution pushes prosecutors to do things and carry on in ways ordinary prosecutors might not," says Gerard E. Lynch, a Columbia law school professor who worked on Walsh's staff. "Each time seems to lead to new and more aggressive uses."
Eighteen independent counsels have been appointed so far. The fact that they are given unlimited time and resources, Lynch says, makes it difficult for them to decide to bring an investigation to a halt or decide an avenue is not worth pursuing.
There is some evidence that independent counsels have become increasingly aggressive: in the first 12 years of the law's existence, not a single indictment was brought, while prosecutors in recent years have brought multiple indictments.
"That's the way the act was intended to work," says Walsh, who himself was criticized for a protracted investigation. "Not to stretch and stretch and stretch and try to get someone."
Lynch and other lawyers agree, however, that the accusation, if true, that Starr and his deputies leaked secret grand jury material to the press is not a matter of poor judgment or stretching limits, but a violation of law. "It's flat-out wrong," says Lynch.
Starr, who has admitted giving some information about his investigation to reporters, denied violating grand jury secrecy laws. The matter is being pursued by U.S. District Judge Norma Holloway Johnson.
Legal analysts are sharply divided over whether some of Starr's other actions violated laws or Justice Department policy, such as his wiring of and granting immunity to Tripp before he had authority to investigate the Lewinsky matter. Some have also questioned the propriety of holding immunity discussions with Lewinsky without contacting her lawyer.
But several lawyers take issue with the criticism that Starr's deputies were overly aggressive and intimidating when they confronted Lewinsky last January, saying such squeeze plays are standard prosecutorial behavior.
"That happens every day in every U.S. attorney's office," said one Washington lawyer and former federal prosecutor who asked not to be named because his firm represents someone involved in the scandal. "It's a seamy and seedy business. It doesn't involve nice people or nice tactics."
Some of Starr's moves that provoked outrage in legal and judicial corners were approved by courts -- although challenges to those decisions remain in various federal courts -- such as his subpoenaing of Secret Service agents and his releasing to Congress thousands of pages of grand jury testimony.
Harriger believes Starr's decision to take such unprecedented actions may reflect his lack of prosecutorial experience.
Among seasoned prosecutors, she says, there is a strong tradition of respect for executive powers as well as for grand jury secrecy.
"Certainly, the Watergate and Iran-contra prosecutors would have benefited from Secret Service testimony," says Harriger. "But other special prosecutors chose not to pursue those areas out of respect for that relationship."
Public relations
In another departure from tradition, Starr has been far more concerned with the public relations aspect of his job than his predecessors, sending out press releases routinely to respond to criticism. Last week, Bakaly visited the New York Times Washington bureau to complain about recent reports.
Bakaly defends the practices, saying such responses are necessary in light of the "public relations battle" being waged by the Clinton forces.
Law professor Barrett believes Congress should explore Starr's methods to determine if there's been any wrongdoing.
But he believes any investigation of the investigator should be separate from, and unrelated to, the investigation of the president.
"It's not reason to give a pass to the president if it turns out Ken Starr has been a flawed prosecutor," Barrett says. "But probably, politics being what it is, people will try to blur the two."
Pub Date: 10/19/98