WASHINGTON -- Independent counsel Kenneth W. Starr threatened Attorney General Janet Reno with a court fight yesterday if the Justice Department goes ahead with an investigation of him, or at least if it conducts the probe in a way that he does not like.

He raised that prospect in a court filing at the same time that the Justice Department, in its own filing, insisted that it has full authority to investigate Starr's performance, a step it plans to take before deciding whether to fire him.

The court papers seemed to escalate the tension that has been building in the weeks since Starr was formally notified that the department is planning to open a probe of allegations that he and his staff have misused their powers.

Starr's threat of a high-stakes court battle appeared to be, at a minimum, a move to gain leverage to try to control how the investigation is conducted. At a maximum, it appeared to be a clear-cut warning that he would not submit to an inquiry that he thinks could undermine his independence.

Although the two sides have been negotiating over procedures for an investigation, those talks are understood to have been difficult, and there is as yet no agreement. Starr's comments yesterday may have been a sign that the talks have not been going well from his perspective.

The dueling filings were prompted by a request by Herndon, Va.-based Landmark Legal Foundation, a conservative legal advocacy group, that Reno be barred from investigating Starr. That request was filed last month with the special three-judge court that appointed Starr to investigate President Clinton's involvement in the Whitewater land deal. Eventually, Starr got the court's approval to look into the Monica Lewinsky scandal, the probe that prompted allegations his misuse of power.

Among the allegations is that Starr's office violated Justice Deparment ethics rules by interrogating Lewinsky last year without her lawyer present.

The Justice Department argued in its filing that the special court has no authority to interfere with any department investigation of Starr, so the Landmark plea should be thrown out.

If the special court attempted to stop a department probe of Starr, the filing argued, "serious constitutional questions would be raised" about the scope of the court's power.

Noting that the independent counsel law explicitly gives the attorney general the authority to fire an independent counsel for "good cause," the department argued that the law gives the special court no "authority to prohibit the attorney general from inquiring" into possible removal.

Moreover, the department said, it is clear that the attorney general, in order to be able to exercise her removal power, must also have the authority to gather facts to justify such an action.

"The ability to determine the pertinent facts is a prerequisite to responsible and effective exercise" of the removal authority, the department said.

Starr, in his court filing, told the special court it should not decide at this point whether it has power to stop a Justice Department inquiry.

The Landmark request should be thrown out, Starr argued, simply because that group has no legal interests at stake, and thus no right to be in court.

The independent counsel also said it is an open question whether the special court could block a Justice Department probe that might threaten "bedrock values of independence" for a prosecutor like Starr.

"This issue is not as susceptible to easy resolution as might be supposed," Starr said.

He strongly implied that the judiciary has the power to second-guess such an investigation. And, he added, the independent counsel law is "silent" on whether Reno has any such investigative authority.

Starr said he would file a fuller statement of his views if the special court decides it can take on the dispute. He argued that, if an attorney general does exceed her authority under the independent counsel law, "an independent counsel who claims to be aggrieved" by that would have the right to go to court over it.

The Landmark Foundation immediately reacted to the new court filings, arguing that the special court could proceed -- even without a formal request that it do so -- to "ensure the integrity" of Starr's investigation. Neither Reno nor Starr can decide how that court meets its responsibilities, the group added.

Pub Date: 3/09/99