A New Starr Leaves Them Trembling : Counsel named to Whitewater probe is truly independent, a quality the Democrats fear.

Since a special three-judge panel rejected the Clinton Administration’s request to appoint Robert Fiske as independent counsel and instead named Kenneth Starr, congressional Democrats have been crying foul, charging that Starr, solicitor general in the Bush Administration, is not truly “independent.”

It is ironic that many of the strongest supporters of independent counsels in the past now contend that the process used to appoint eight of them during Republican administrations has failed and that Starr should step down. According to these first-time critics, Starr’s appointment smacks of partisan skulduggery. Nothing could be further from the truth.

The independent counsel process is necessary, according to its proponents, to prevent the inherent conflicts of interest that exist when a president’s Justice Department must investigate or prosecute one of its own in the executive branch. The special three-judge panel of the U.S. Court of Appeals, which is charged with appointing independent counsels, therefore acted properly when it rejected Fiske as independent counsel on Whitewater.

Fiske was appointed special counsel by Atty. Gen. Janet Reno at a time when she did not have the authority to request an independent counsel. As a special counsel, Fiske was an official of--not independent of--the Justice Department. So the elevation of Fiske to independent counsel would have caused, at the very least, the appearance of a conflict of interest.

In a July 13 letter to Judge David Sentelle of the special panel, I, along with nine Republican colleagues, expressed the view that Fiske should be disqualified because a major part of the Whitewater investigation “concerns the Justice Department’s role in thwarting prosecution of the Whitewater-related Madison Guaranty Savings and Loan collapse.” We also cited other possible conflict-of-interest concerns, including Fiske’s “numerous contacts with key officials in the Clinton Administration prior to his appointment as special counsel--including a long-running relationship with Bernard Nussbaum,” Clinton’s former White House legal counsel. In addition, Fiske formerly represented the International Paper Co., which “sold land valued at roughly $550,000 to the Whitewater Development Company” and “received loans totaling over $7 million from the Arkansas Development Finance Authority, which was created by the Clinton Administration.”

While we were careful not to recommend the appointment of a specific individual--only that it not be Fiske--congressional Democrats and the Administration went to considerable lengths to obtain Fiske’s appointment. During House and Senate negotiations on reauthorization of the Independent Counsel Act, a provision was added that waived the prohibition against appointing as independent counsel anyone who is serving in a public capacity, a provision clearly inserted to permit the appointment of Fiske and to confer Congress’ blessing upon him.

After the reauthorization, Reno requested a Whitewater independent counsel. Having been given clearance from Congress, she took the unusual step of specifically requesting Fiske’s appointment.

The judicial panel rebuffed Reno, stating that the appointment “would not be consistent with the purposes of the act. . . . As Fiske was appointed by the incumbent Administration, the court therefore 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.”

This was a shock to those who have a political interest in sweeping Whitewater under the rug and who had developed tremendous “respect” for Fiske, especially after he repeatedly insisted that Senate and House hearings be limited in scope. This offered congressional Democrats political cover for avoiding a thorough vetting of Whitewater.

Today, all the President’s men face an uncertain future. Their inability to control events by securing the appointment of Fiske has left them trembling with fear. But it is a fear unleashed not by a Republican conspiracy, but by an independent counsel “monster” that the Democrats themselves created.

Independent counsels are supposed to be independent of executive branch pressure and coercion. They are not supposed to be independent of individual values or thought, which are Starr’s qualities that Democrats dislike most. While we must wait to see what kind of independent counsel Starr will be, it is already certain that the rejection of Fiske will help to ensure that the American people have confidence that the Whitewater investigation will be fair and thorough.