Starr’s Method Rules Out ‘Out of Control’

Now that Kenneth Starr appears to have the upper hand in the Monica Lewinsky investigation, even some Democrats are advising the president to publicly confess that he had an affair with the former White House intern. But at the same time, few of the president’s defenders seem willing to abandon their offensive against the independent counsel, insisting he is an “out of control” prosecutor willing to abuse his power in order to get Bill Clinton.

The charge has been repeated so often that it has taken on the appearance of credibility. But it bears scant resemblance to the picture that emerges from a look at the way Starr’s office actually operates. Interviews with five of the independent counsel’s former prosecutors suggest that, far from being out of control, Starr is an extraordinarily cautious lawyer who will not take action without intensive deliberation and analysis. And he has constructed a system to ensure that neither he nor his staff make hasty, ill-considered decisions.

“The decision-making in Ken’s office was always very careful and thorough,” says John Bates, who served as Starr’s top deputy from January 1995 until March 1997. Early in the investigation, Starr split the office into teams--the Whitewater land group, the Vincent Foster death group, the Travel Office group and others--in an effort to divide the far-reaching work of the independent counsel into manageable parts. Any time a momentous decision has been made, whether it be a choice to indict or not indict or a decision to take a legal position in the courts, Starr has put his staff through a rigorous routine.

First, the lawyers responsible for the team write a “pros memo”--short for prosecution memorandum--analyzing all the evidence in the case. Each memo is exceptionally detailed, sometimes stretching to several hundred pages. The memo is then passed around to Starr’s top staff. “All lawyers would be asked--strongly asked--to review the memo and the underlying testimony and documents,” Bates says, “and then participate in a lengthy meeting or series of meetings in which the issue would be discussed.”

Participants say Starr wanted everyone on board before taking action. “On indictment decisions, consensus was the goal,” says Eric Jaso, who was a prosecutor in Starr’s office from March 1995 until January 1997. “I don’t remember any instance in which an indictment was presented over anyone’s objections.” The decision to indict Jim and Susan McDougal, the Clintons’ former business partners, and then-governor of Arkansas Jim Guy Tucker in August 1995 is a case in point. Bates says the decision was made over several weeks, with pros memos analyzing what Bates calls “multiple potential charges” against several people--not necessarily confined to those who were ultimately indicted. In the end, a consensus in favor of indictment was reached, and all three defendants were convicted.

Other pros memos have resulted in no action. For example, a several-hundred-page analysis was written on Hillary Rodham Clinton’s Rose Law Firm billing records, which had been missing for two years before mysteriously reappearing in the White House residence in January 1996.

Starr’s painstaking method has sometimes been the cause of friction in the office. “Some of the prosecutors who were used to United States attorneys’ offices felt that the exercise was somewhat unnecessary,” says Jaso. (Within the Justice Department, an assistant U.S. attorney often can go forward with an indictment without the extensive peer review required by Starr.) But others in the office believed that Starr’s approach had to be more careful than that of other law enforcement agencies. “With so much discretionary power given to the independent counsel,” Jaso reasons, “it’s a fairer method than if you had an independent counsel who was acting more like a U.S. attorney.”

None of these prosecutors has been involved in Starr’s recent decisions. Still, it seems likely that Starr continues to operate in the same way he established when he took over the Whitewater investigation. For example, Starr’s indictment of former Clinton confidant Webster Hubbell on tax charges was the result of months of deliberations. Despite a federal judge’s decision to throw out the case--in an opinion that accused Starr of both exceeding his jurisdiction and violating Hubbell’s 5th Amendment rights--Starr’s prosecutors believe their position has solid support in the law and will prevail on appeal. It’s hardly the picture of an out of control prosecutor.

Indeed, to some supporters it appears that Starr’s careful method is most threatened not by any purported zeal to topple the president but by his vulnerability to White House attacks. “It’s fair to say that while I was there the attacks on Starr personally or upon the integrity of the investigation were a diversion that occasionally caused some interference with our efforts,” says Bates, who helped run the office during the time Clinton ally James Carville began his anti-Starr crusade. The criticism has increased exponentially in the months since the Lewinsky investigation began. If Carville’s potshots occasionally shook up Starr’s staff two years ago, then today’s nuclear attacks might well be doing more significant damage.

Still, Starr goes on, studying, analyzing--and taking his time. It’s a method that has brought him substantial success, including 12 guilty pleas and three trial convictions. It also has brought him a lot of criticism, but on the accusation that he is out of control, one thing seems clear: Starr’s method virtually rules out any rash action by the independent counsel’s office. No matter what they might say about Starr, even his enemies should be grateful for that.