Wittes' 'Starr' -- truth above justice


Starr: A Reassessment, by Benjamin Wittes. Yale University Press. 256 pages. $24.95.

A funny thing happened on the way to this book: Ben met Ken. Before that, Benjamin Wittes, a Washington Post editorial writer on federal justice issues, had been openly critical of independent counsel Kenneth Starr. He seemed surprised, then, when Starr "consented without a moment's hesitation" [vii] to a comprehensive on-the-record cross-examination by Wittes shortly after leaving office. And the Ken Starr author Wittes got to know then was not the familiar "demonic caricature," but instead a "... decent man who honestly set out to avoid the excesses of his predecessors," but then ended up multiplying those abuses in a "terrifying probe."

How could this happen? Starr: A Reassessment is Wittes' only partially successful effort to reconcile his aversion to many Starr investigative actions with his largely favorable impression of Starr as a person.

The author concludes that the independent counsel did not, as Starr-bashers have charged, act in bad faith, or unethically, or with excessive partisan zeal, or even as a "sex-obsessed puritan." Wittes specifically -- and convincingly -- refutes each of those claims.

Rather, after laborious analysis, the author asserts that Starr's "original sin" was a "radical" misinterpretation of the independent counsel statute. Wittes contends that Starr "recast the law ... in his own image" to reflect his own values, of which truth was paramount. Accordingly, Starr read the statute (which, ironically, he had vigorously opposed) as requiring him to discover and report the truth (a word which does not appear in the IC law) at all costs, rather than simply preparing cases for criminal prosecution. And ultimately, Starr's view "... forced him to become Congress's agent in the impeachment process."

Truth above justice.

Wittes argues that the independent counsel's "truth commission" focus explains virtually all of the excesses attributed to Starr. Examples: his re-investigation of Vince Foster's death, serial prosecutions of Susan McDougall and Webster Hubbell, and many of his actions in the Monica Lewinsky probe. In each case, Wittes contends that a traditional federal prosecutor would have ended the probes once it became clear that prosecutable cases were unlikely to result (as former special prosecutor Robert Fiske in fact did in the Foster case). But instead, Wittes insists, Starr's "truth commission vision" repeatedly trumped normal prosecutorial interests.

Ultimately, though, the "truth commission" construct is overworked here, and too facile to explain dozens of complex decisions. Moreover, Wittes examines Starr's decisions largely in a vacuum. Clinton's conduct is considered only to the extent "... necessary to evaluate Starr's decision-making" (a little like studying the Civil War without serious reference to Robert E. Lee).

Curiously, Wittes suggests but then does not pursue a more promising explanation for Starr's decisions: "A president with a pathological allergy to telling the truth thus found himself confronted by a prosecutor who had reformulated the prosecutorial process into a search for it."

In the end, the new Starr that emerges from this sometimes tedious account (legislative history rarely being the stuff of drama) is neither as bad nor good as critics and supporters have variously contended. General readers will find it challenging, but Wittes' exploration of the tension between truth and justice may be valuable for future policymakers.

David W. Marston is author of Malice Aforethought, an analysis of abuses in law practice, and co-author of Inside Hoover's FBI, with Neil J. Welch. U.S. attorney for the Eastern District of Pennsylvania from 1976 to 1978, Marston is now a lawyer in civil practice in Philadelphia.

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