Whitewater Counsel Defends His Dual Roles

Independent counsel Kenneth W. Starr defended himself Monday against a growing number of critics who have said that he should not be representing legal clients while investigating the Whitewater controversy.

Starr, in a speech to a bar association group in San Antonio, argued that the law creating independent counsels does not require them to work exclusively for the government. He noted that all but one of his 16 predecessors as independent counsels had continued to be associated with private law firms.

“The independent counsel was never expected to become a full-time employee of the government and leave his or her law firm,” Starr said. “To the contrary, it was expressly contemplated that individuals, while giving careful attention to the demands of their official duties, would remain within their law firms.”

*

Nevertheless, Starr is the first independent counsel who has continued to act as a defense attorney in numerous high-profile cases while heading up an investigation of alleged wrongdoing by a top government official. He collects a salary both from his law firm and the government.

According to Debbie Gershman, Starr’s spokeswoman, the independent counsel is paid on an hourly basis for his work for the government. His hourly salary is based on an annual rate of $115,000 a year, she said.

Last week, Starr, acting as a private attorney, represented the tobacco industry in a major class-action suit being heard by a federal appeals court in New Orleans. The previous week, he argued a major labor law case in the Supreme Court on behalf of National Football League reserve players.

These are just two of the many court cases that have sparked criticism of Starr--most of it from Democrats.

In the past, Starr, a former U.S. solicitor general, has said that he was not trying any of the Whitewater-related cases because he is not an experienced prosecutor. He noted that the work is being handled by men and women with considerable experience as prosecutors, such as Ray Jahn.

He acknowledged Monday that his predecessor as Whitewater prosecutor, Robert B. Fiske Jr., whom he replaced in July 1994, took a leave of absence from his law firm to do the job. But he noted that Fiske was appointed by the administration, while he was appointed by the courts under a new independent counsel law enacted in June 1994.

Starr also asserted that putting defendants on trial is only a part of his job as independent counsel. “In the last 19 months,” he said, “we have made substantial progress, progress that cannot be measured simply in terms of trials and public activity.”

As he spoke, his assistants in the independent counsel’s office were continuing to try the central case in the Whitewater scandal. In that case, Arkansas Gov. Jim Guy Tucker, James B. McDougal and his ex-wife, Susan, are charged with conspiring to commit fraud.

*

Government attorneys acknowledged after the day’s proceedings that their chief witness, David Hale, has changed his story slightly during two weeks on the witness stand. But Jahn, who is one of Starr’s principal deputies, insisted that the changes in Hale’s story are unimportant to the case.

Among other things, Hale claims that he was pressured by then-Gov. Clinton in the mid-1980s to make an improper loan from his government-backed small business investment firm to the McDougals, who were the Clintons’ investment partners in an Ozarks resort development known as Whitewater. It was their joint investment in Whitewater that precipitated Starr’s investigation into whether the Clintons benefited improperly from it.

According to Hale, Clinton offered to put up the Whitewater property as collateral for the loan. At the same time, he said, the then-governor insisted that he did not want his name associated with the transaction.

While cross-examining Hale, attorney George Collins, who is representing Tucker, noted that it would be inconsistent for Clinton to offer land in his name as collateral if he did not want his name associated with the deal. But Hale insisted that there was no inconsistency.

Starr, who earns a salary in excess of $1 million as a lawyer for a Washington law firm, has never appeared in the courtroom during this trial, which began in early March. Instead, he continues to practice law while supervising the independent counsel’s office.