Abbe Lowell, minority counsel for the House Judiciary Committee, asked Independent Counsel Kenneth Starr why his referral to Congress was "substantially different" from the one submitted by Special Prosecutor Leon Jaworski in the Watergate impeachment case of Richard Nixon. It is commonly agreed that the Jaworski referral was a model of decorum and facts presentation. And it is widely agreed that the Starr referral was slanted, one-sided, accusatory, filled with innuendo and unnecessary salacious details.
Starr replied, "Our referral did indeed differ, and if I may explain why: Mr. [Archibald] Cox and then his successor Mr. Jaworski were dealing in an environment not controlled by the law. Mr. Cox, Mr. Jaworski never had occasion to look at [the Independent Counsel Act] because it did not exist."
Yes! YES!!
If anything good is going to come out of this terrible Whitewater-Lewinsky marathon nightmare, it will be the public's and Congress' realization that the
Independent Counsel Act is the prime culprit in this craziness, and that the law must be allowed to die when it comes up for renewal next year.
Journalists and the public have not focused on that because Ken Starr has become such a lightning rod.
Exhibit A is "...And the Horse He Rode in On: The People vs. Kenneth Starr" by James Carville (Simon & Schuster, 176 pages, $14.95). Published in October, it is a reduction to print of Mr. Carville's famous gift for colorful invective. He's more entertaining flapping his jaw on television than pounding a word processor, but if you hate Ken Starr, you'll enjoy this slim volume. I didn't enjoy it, probably because I only thoroughly disapprove of Starr.
What I hate is the law. So does Carville, but he only says so once in passing, and obscures the point by resorting to the frothing at the mouth that overtakes him so often: "Like the potion that transformed Dr. Jekyll to Mr. Hyde, the independent counsel statute mutated an average, low-down, money-grubbing cigarette lawyer into a sex-obsessed, out-of-control, self righteous, downright repugnant Inspector. All Americans should hope and pray that we never see his kind again."
We will see his kind again, if the law is extended. We will see his kind again, even if it's not and Congress substitutes for it what another Starr critic proposed in a just-published book. Alan M. Dershowitz is Harvard Law School's version of Carville.
Dershowitz's contribution to this debate, Exhibit B, is "Sexual McCarthyism: Clinton, Starr, and the Emerging Constitutional Crisis" (Basic Books, 256 pages, $23).
He castigates just about everybody on the playing field, from Starr to President Clinton's lawyers, and the Independent Counsel Act, too. But what he proposes to replace that with is much worse.
He would have the Justice Department divided into a "Ministry of Justice," headed by the attorney general, and an "Office of Public Prosecution," headed by a "Director of Public Prosecutions," a civil servant nominated by the president and confirmed by the Senate for a fixed term. I find the first a little too Frenchy and the latter a little too Soviet.
George Orwell would have been among the first to predict that Ken Starr would come along. He would have done so when he noted that the old, original "Special Prosecutor," a la Archibald Cox and Leon Jaworski of Watergate fame, was re-designated "Independent Counsel" in the law that codified the office. Hello "1984."
Among those who did predict a Starr were Justice Antonin Scalia his dissent in the Supreme Court decision that upheld the law in 1988, and three conservative former attorneys general of the recent past, who filed a very prescient brief opposing the law, Edward Levi, Griffin Bell, William French Smith.
Starr was predictable, and so were some of his contemporaneous prosecutors. For example, those who went after Henry Cisneros and Mike Espy. Those two Clinton cabinet members were driven from office and burdened with legal debts for fibbing to investigators about financial relations with a mistress (Cisneros) and accepting gifts from private entities (Espy). In neither case were any corrupt activities proven.
The suspicion of corruption is often only the starter fluid of independent counsel investigations. The flames eventually singe the targets for unrelated acts, usually committed by men trying to avoid personal embarrassment or political ruin.
I believe one reason these counsels are so vindictive and remorseless (even for the collateral damage they inflict on innocent bystanders) is that they so often lose their case in chief. Starr flopped on Whitewater, the FBI files and the Travel Office probes.
Then there was Lawrence Walsh. He criminalized foreign policy political disputes over trading arms for hostages and giving aid to the Nicaraguan contras between the Republican White House and the Democratic Congress and pursued his preys for almost seven years. He got convictions or pleas from a few middle and low level bureaucrats, mostly for covering up the original misdeeds, many of which were trivial and/or more political than criminal.
If you think Starr is relentless and obsessive, you should refresh your memory about Walsh. His 1997 memoir "Firewall" (W.W. Norton, 544 pages, $39.99) is a textbook on how independent counselors are a law unto themselves. I repeat, it's not a question of personalities. Walsh is now one of the leading critics of the tactics of Starr's Office of Independent Counsel. To invoke James Carville's comparison, Walsh has resumed being Dr. Jekyll now that his own OIC tenure is over.
Supporters of Kenneth Starr say if he's so bad, why doesn't Attorney General Janet Reno remove him? The OIC law provides for removal for "good cause." Sounds good, but it's a phony protection against a rampaging partisan (like Starr) or a rampaging legalist (like Walsh). That's because the law also says that even an independent counsel fired for good cause can file a civil suit in the U.S. District Court in D.C., which may "reinstate" him. Federal judges also select the independent counsels.
When the president of the United States can't fulfill his Constitutional responsibility to see that the laws are executed, by hiring and firing those charged with prosecuting the laws; when, in other words, the prosecutor is unanswerable to the chief law enforcement of the land (even for budget), it is hardly surprising that a significant number of such prosecutors will be arrogant and unrestrained as well as relentless, reckless and remorseless.
Given the job of dealing with essentially political situations and crimes - or should I say "crimes"? - such prosecutors will always go an extra mile or two or a thousand to get a conviction, especially if the prey is a political adversary, especially a high-profile one.
As the Levi-Bell-Smith brief put it: "The problem is that the institutional environment of the Independent Counsel - specifically isolation from the Executive Branch and the internal checks and balances it supplies - is designed to heighten, not to check, all the occupational hazards of the dedicated prosecutor: the danger of too narrow a focus, of the loss of perspective, of preoccupation with the pursuit of one alleged suspect to the exclusion of other interests."
Leon Jaworski succeeded Archibald Cox because Cox was fired. (For an excellent account of that see the 1997 biography of Cox, "Conscience of a Nation" by Ken Gormley (Addison-Wesley, 585 pages, $30, 160 pages deal with Watergate). Jaworski also could have been fired if President Nixon could convince congressional leaders that he should be (such a deal was agreed by both sides when Jaworski was confirmed). Politics, in the good sense of that word, dictated it.
The old system works. In a 1992 study, "Independent Justice" by Katy Harriger (University Press of Kansas, 266 pages, $27.50), the author wrote: "The checks and balances of the American system are in most cases adequate for the exposure and disposal of official misconduct cases. The competing institutional interests, the dispersal of power, the influence of non-government elites, a free press, and the potential power of public opinion all work to ensure that the abuse of power by public officials will not go unnoticed for long."
Or unpunished, if the abuse is serious enough.
Watergate, she concluded, was a "classic" example of how the system works. I'd say so, and we can go back to it if we let the current law expire.
Theo Lippman Jr. is a free-lance writer. He retired in 1995 after 30 years as a Sun editorial writer. He authored biographies of Sens. Edmund Muskie and Edward Kennedy.
Pub Date: 12/06/98