Starr Crossed

by Jeffrey Rosen | December 14, 1998

"You have no right or authority under the law, as independent counsel, to advocate for a particular position on the evidence before the Judiciary Committee," Sam Dash wrote to Kenneth Starr last week, announcing his decision to resign as Starr's $400-an-hour ethics adviser. But Dash's frantic attempt to save his tattered reputation after Starr's appearance before the House was several months too late. The aptly named Dash raised no objection when Starr filed his aggressively polemical report to Congress in September, which argued that Clinton had committed not only crimes but potential high crimes. Indeed, based on Dash's expensive advice, Starr was persuaded to make portions of his report even more tendentious. Dash's shock and horror over the discovery that Starr had violated the letter and spirit of Article I, Section 2 of the Constitution, which says that the House "shall have the sole Power of impeachment," was an inspired touch of Claude Rains that struck a nicely comic note at the end of an otherwise trying week.

Nevertheless, the real legacy of Sam Dash is not his hypocritical attempt to distance himself from his embattled protege but his authorship of the independent counsel law that created this constitutional aberration in the first place. Dash helped to draft Section 595(c) of the statute, the impeachment referral provision, which says that "an independent counsel shall advise the House of Representatives of any substantial and credible information ... that may constitute grounds for an impeachment." It's no coincidence, in light of this constitutionally troubling delegation of powers, which the Supreme Court didn't specifically consider when it upheld the statute in 1988, that Starr and his congressional interrogators seemed confused about the roles that they had been assigned to play. Starr grandiosely but revealingly suggested that he address the committee standing behind a podium, recalling his days as an advocate before the Supreme Court, and Democrats and Republicans sparred about whether to address him as "judge," "prosecutor," "counsel," or "witness." In fact, the statute invited Starr to juggle all four roles at once. He gathered evidence like a prosecutor, evaluated the credibility of testimony like a grand juror, applied facts to the law like a judge, and decided whether ordinary crimes might rise to the level of high crimes like a legislator.

On Thursday, Abbe Lowell, the chief counsel for the Democrats, attempted to contrast Starr's impeachment referral with the report submitted by Leon Jaworski, the Watergate special prosecutor, in 1974. But Lowell never quite explained the constitutional significance of the comparison: Jaworski had carefully framed his report to avoid the constitutional difficulties that Starr exacerbated. Only 55 pages long, Jaworski's report set forth the relevant evidence without any commentary, made no conclusions about whether the president had committed ordinary crimes or impeachable offenses, and contained a single piece of evidence on each page. Submitted under seal, where it remains today, and delivered in the name of the grand jury, it could plausibly be considered the equivalent of an ordinary grand jury presentment-- a report of official misconduct--that the House was free to embrace or ignore as it saw fit.

Unlike Jaworski, Starr had to confront the constitutional dilemma posed by the independent counsel law, which required him to report information relevant to impeachment that he had discovered in the course of his own investigation. But Starr might have minimized the dilemma in two ways. First, he might have turned over the Linda Tripp tapes to Congress last January, as soon as he concluded that they contained "substantial and credible information that the president may have committed impeachable offenses." By interpreting 595(c) as authorization for him to give Congress raw " information," but not a narrative report of legal conclusions, Starr wouldn't have encroached on Congress's prerogatives any more than Linda Tripp would have if she had sent the tapes herself. Of course, if Congress had faced up to its responsibility to engage in public fact-finding, it would have never threatened Monica Lewinsky or set a perjury trap for Clinton, as the unelected prosecutor felt free to do.

Alternatively, Starr might have followed Jaworski's lead by asking his own grand jury to issue a presentment about the president's wrongdoing and transmitting it to Congress in the grand jury's name. But, aside from leaking the fact that several grand jurors had laughed at the president's testimony, Starr gave his Potemkin grand jury no formal role in the impeachment referral at all.

Having interpreted the independent counsel law in a way that made his own opinions and legal conclusions central to the impeachment debate, Starr can hardly complain when Democrats and Republicans pressed him to justify his conclusions. Elton Gallegly, a California Republican, asked Starr if he could give "a brief assessment" of the credibility and truthfulness of Lewinsky, Betty Currie, and Vernon Jordan. After saying he was reluctant to answer, " because of fundamental fairness concerns," Starr answered anyway: "With respect to Ms. Lewinsky, I think she desperately does not want to hurt the president." Never mind that Starr, who once said he couldn't give Lewinsky immunity without "looking her in the eye," turned out never to have met Lewinsky or attended any of her depositions. In fact, Starr's opinions about Lewinsky's credibility shouldn't carry any more weight with the House than those of her former attorney, whom Starr called, in a Dickensian touch, "the very loquacious Mr. Ginsburg." The Constitution assigns the role of assessing the credibility of impeachment evidence to the House alone.

Charles Schumer of New York accused Starr of fishing for salacious material to embarrass Clinton, and there is lingering anger among congressional Democrats about the degree to which he succeeded. Two days before Starr's testimony, in the most egregious privacy violation of the entire inquiry, the nation heard Monica Lewinsky, in her surreptitiously tape-recorded phone conversations with Linda Tripp, accuse the president of having a venereal disease. We also heard her express jealousy toward another White House staffer, Debbie Schiff, who she believed was the president's girlfriend. In one of her FBI interviews, which appears in Starr's appendices, Lewinsky suggested that Schiff might have given her name to Paula Jones's lawyers, so that Schiff wouldn't have to testify. Later, when Clinton gave Lewinsky the names of the other women on the witness list, Linda Tripp told the FBI that " this information comforted Lewinsky because Debbie Schiff was not on the list, " and "Lewinsky figured the Paula Jones people could not know much if they left off Schiff, a longtime girlfriend of the President." (The last seven words are clearly visible under the half-hearted redaction.)

The decision by Henry Hyde, chair of the Judiciary Committee, to release the raw FBI reports and grand jury transcripts in Starr's appendices, as well as the Tripp tapes, was a gross violation of Schiff's privacy as well as Lewinsky's, a textbook example of an unreasonable intrusion under the Fourth Amendment. There was no evidence that Schiff was, in fact, involved with the president, despite the extraordinary but futile efforts of Starr's prosecutors to troll for rumors in their interrogations of the Secret Service. The grand jury transcripts that Hyde released show that, in response to questions by one of Starr's deputies, a Secret Service agent named Gary Byrne said that he saw Schiff put her hands over her lips and say "ssh" as she walked into the president's pantry. Later, Byrne noticed that "the president was sitting in a chair, and Debbie was standing behind him, like--like she was massaging his shoulders." As a result of this incident, Byrne said, he assumed that the president's steward was referring to the president and Schiff when he allegedly complained about having to clean up lipstick-stained tissues in the president's study.

But no one corroborated Byrne's testimony. When the prosecutors asked another agent, Brent Chinery, about rumors that the steward had found lipstick-stained tissues in the president's study, Chinery said that, to the best of his memory, the tissues were found after the president visited with Lewinsky, not Schiff. Finally, the prosecutors called the president's steward himself, who denied the rumors unequivocally. "Did you ever find lipstick- stained anything in the Oval Office, in the White House?" "No, sir." "Or anything that was stained red?" "No, sir."

Aside from a desire to embarrass the president, the only possible justification for these outrageous questions was an attempt to charge the president with perjury when he told Paula Jones's lawyers that he hadn't engaged in sexual relations with any federal employees while he was president of the United States. But the questions were as far removed from Starr's mandate to investigate obstruction of justice and perjury arising out of Monica Lewinsky's testimony as Starr's efforts to interrogate Clinton's alleged girlfriends in Arkansas were to his mandate to investigate Whitewater.

Many of the questions from congressional Democrats seemed designed to give Starr a taste of his own medicine, fishing for salacious information for the sole purpose of humiliating the independent counsel. Indeed, the entire impeachment hearing might be considered a perjury trap that the Democrats set for Starr, in which they asked him pointed questions about his legal but embarrassing activities and tried to corner him into telling minor lies under oath.

For example, the questions about Starr's contacts with Paula Jones's lawyers and when, precisely, he first learned that a tape recording might exist on which a woman claimed to have had sexual contact with President Clinton--all were designed to paint Starr into a corner. When Congresswoman Zoe Lofgren asked if he had learned about the tape recordings in November 1997, Starr responded very much as President Clinton did when he was surprised in his deposition by the oddly specific questions of Paula Jones's lawyers. "I am not recalling that," Starr said. "The specificity of your question suggests there may be information, and I'm happy to respond to information if that is ... relevant."

Starr was similarly Clintonian in denying David Kendall's charge that his agents had attempted "to get Ms. Lewinsky to wear a recording device and surreptitiously record Mr. Jordan or the president." Starr insists that his prosecutors had discussed "consensual monitoring" at a "high level of generality," without specifically mentioning Jordan or the president. But Lewinsky told the grand jury under oath that Michael Emmick had asked her "to place calls or wear a wire to call Betty and Mr. Jordan and possibly the president." Like Clinton, Starr was splitting hairs to avoid acknowledging legal but embarrassing conduct by his prosecutors. And, in so doing, he managed to suggest that his key witness had lied under oath.

As for the contacts with Paula Jones's lawyers, Democrats on the Judiciary Committee believe that Starr may have received a draft of Monica Lewinsky's affidavit from Paula Jones's lawyers, who, as Starr's appendices illustrate, had been sent a copy of it by Lewinsky's lawyer, Frank Carter, on January 12. "It seems to me that the only way he could have got it was the Jones lawyers," a Democratic staffer told me. "The only people who had it were Frank Carter and Paula Jones's lawyers and Monica, and when Starr confronted her, she didn't have it. That to me is a pretty good circumstantial case." Although Democrats didn't ask Starr directly where he got the affidavit, because they weren't certain of the answer, this committee staffer believes that Starr might not have told the truth when he said that Jones's attorneys "reached out to me with respect to the constitutional immunity issue solely, exclusively."

Finally, House Democrats insist that Starr himself interfered with their impeachment inquiry when he refused their request to turn over documents relating to the expansion of his jurisdiction. Lis Wiehl, the chief investigative counsel for the Democrats, told me: "We fought about that for weeks. I was constantly given answers for why that couldn't be given. They would say, 'We have to ask the Department of Justice,' and then the Department of Justice would say, 'No, they don't have to ask us.'... We think the interest of fairness demands you would be given this information in any civil litigation, let alone an impeachment investigation. Talk about obstruction of justice and abuse of power." It's ironic that the only constitutionally uncontroversial role that Starr could have assumed in the impeachment process--that of a nonpartisan investigator supplying factual information in response to requests from the House--was the role that he refused to play.

If the Lewinsky affair were an ordinary criminal case, of course, the attempt to distract attention from the facts by attacking the prosecutor would be a cheap example of Johnnie Cochranism. But ordinary prosecutors bring indictments rather than offer impeachment recommendations; and Starr's interpretation of his duties under the independent counsel statute has made his own conduct and motives central to the House's deliberations. The fact that the Judiciary Committee now feels compelled to vote on Starr's allegations, even though the country wants them and him to disappear, shows how profoundly the independent counsel law has distorted the complicated blend of legal and political judgment that the Constitution envisioned when it gave the House exclusive control over the impeachment process. Nevertheless, by passing the buck to Starr and then attacking him for performing duties that he should never have been asked to perform, Sam Dash and other Democratic supporters of the independent counsel law deserve as much blame as the independent counsel himself.

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