Whitewater: Start All Over Again : Midstream switch of special prosecutor was unavoidable

As uncomfortable as it will make the Clinton White House, the decision of a special three-judge panel--activated earlier this year by Congress’ renewal of the special prosecutor statute and signed into law by the President--to replace Robert Fiske as special counsel in the Whitewater case was unavoidable. Indeed, Atty. Gen. Janet Reno had virtually predicted that something like this would happen.

Back in January, as the temperature in Washington over Whitewater was rising daily, Reno was under tremendous pressure to appoint a special counsel to open up a formal investigation. At the time Reno did so, but reluctantly. That was not because she opposed an independent probe, but because she believed that no one named by Clinton’s appointed attorney general would be perceived as truly independent. What she recommended was that everyone wait until the independent counsel law was renewed.

That law, used in the Iran-Contra case and other controversies, stipulates that any special counsel be named by neither Democrats nor Republicans but by a panel of federal judges. It was such a panel that moved to replace Fiske with Kenneth W. Starr, a former federal judge and high-ranking legal counselor in both the Bush and Reagan administrations.

The panel pointedly noted that it was not its intent to “impugn the integrity of the attorney general’s appointee, but rather to reflect the intent of the act. . . . . The court . . . deems it in the best interest of the appearance of independence contemplated by the act that a person not affiliated with the incumbent Administration be appointed.”

The choice of Starr made no one’s day in the Clinton Administration. Not only is he a certified Republican but he has been an active critic of the White House’s view that Clinton, as long as he is President, should be temporarily insulated from civil suits, such as the sex-harassment claim filed by Arkansan Paula Jones. Starr’s stance no doubt raises questions among Democrats about his impartiality. But it will also undercut Republican criticism should Starr’s final findings not be to the GOP’s liking.

Though Reno was right to not want to name anyone herself, she was wrong to recommend to the judges that Fiske be allowed to stay. As good and as thorough and as fair as Fiske’s probe may have been, he still remained the pick of the very Administration whose President and First Lady were under scrutiny. It’s too bad that this midstream switch is going to cost the taxpayers even more money for the probe. But efficiency in government is not always congruent with justice.