THE DECLINE AND FALL OF KENNETH STARR

Stephen Gillers teaches legal ethics at New York University School of Law

Current events brim with Shakespearean resonances. Take the nontrial of the century now ending its Senate run. My nominations for Shakespearean equivalents are: President Bill Clinton as Henry V while he was still the lawless Prince Hal; Hillary Rodham Clinton as Portia or Lady Macbeth, depending on your point of view; and Monica S. Lewinsky as Mistress Quickly.

What about Kenneth W. Starr, the independent counsel? The most obvious comparison is to Angelo, the sanctimonious hypocrite in "Measure for Measure," who condemned Claudio to death for illicit sex because, "We must not make a scarecrow of the law," and then tells Claudio's sister, Isabella, that she can "redeem thy brother by yielding up thy body to my will." Uncanny, given Starr's stature before he became independent counsel, that the comparison does not seem entirely preposterous.

Starr once had a good chance to be attorney general or a Supreme Court justice, even chief justice. As a federal appellate judge in the Reagan years, Starr was reliably conservative but not extremely so. As solicitor general in the Bush years, he remained conservative without being scary. In 1993, Starr entered private practice. It was his first chance to make serious money and, given his talent as an appellate lawyer and status as a former judge, he did. At the same time, he remained active in conservative causes, even weighing a Senate run from Virginia. Back then, Starr had only to cultivate his political alliances and wait. He was young, and time was on his side. His greatest impediment was the perception that he was not conservative enough.

Starr's hopes are now dashed by his many misjudgments. The most recent are his secret effort, while the Senate trial was underway, to help the House managers force Lewinsky to submit to a one-sided interview, and, far worse, last week's leak from Starr's "associates" that he believes he can indict and try a sitting president. Not only was this interference with the Senate trial wrong in itself, it enables Starr's opponents to put other controversial conduct in the harshest possible light. No one, not even the Comeback Kid, could rebound from the devastation done to Starr's public career.

Starr is not entirely responsible for his steep and irreversible descent. The Clintons, mainly through agents, have relentlessly portrayed him as an obsessed man who has abused his powers and broken the law. Op-Ed pieces have aided the effort, some going so far as to offer earnest but ludicrous diagnoses of Starr's psychology, including in matters of sex. It has been said that Starr, whom I met in 1981 and know slightly, has been demonized. But that is inadequate. A demon elicits fear, not ridicule. Public humiliation is more like it.

Starr must assume a large part of the blame for his ravaged expectations. It is hard to imagine how a man with such good judgment in other areas of professional life could have made the cumulative errors Starr did. Any item on the following list may seem innocuous, but, collectively, they have given Starr's foes enormous power to hurt him. Consider:

* Until last summer, Starr continued to practice law for a million-plus dollars yearly, arguing cases hostile to the policies of the man he was investigating.

* Starr took on the Lewinsky investigation without checking to see whether anyone at his law firm had worked on the underlying Paula Corbin Jones sexual-harassment case, which would create a conflict. Someone had.

* When Starr sought permission to expand his investigation to include the Jones case, he did not tell the attorney general or the appointing court that, while in private practice, he had advised Jones' lawyers on how to defeat Clinton's immunity claim.

* Starr is seen to be particularly aggressive against women: The publicly shackled Susan McDougal, who refused to cooperate, was imprisoned for civil contempt and now faces trial for criminal contempt; Hillary Clinton was subpoenaed to the grand jury and made to face an army of reporters as she entered and left the courthouse; the visibly distraught Marcia Lewis, Lewinsky's mother, was repeatedly called to testify against her daughter and nearly collapsed; and Julie Hiatt Steele, a bit player who challenged Kathleen E. Willey's allegation that Clinton groped her, has been indicted for making false statements and obstruction of justice.

* Many press stories about Starr's investigation cite his office and appear to reveal secret grand-jury information.

* Though Starr is investigating the president, a job of immense gravity and responsibility, he worked at this investigation only part time for four years and never bothered to meet any of the witnesses whose credibility is key to the charges in his own impeachment report.

* The same report does not simply offer evidence that "may constitute grounds for an impeachment," as the law instructs, it is a work of relentless and selective advocacy for removing Clinton.

* Starr's lawyers and agents questioned Lewinsky last January without the permission or presence of her lawyer, a violation of legal ethics rules. The encounter was abusive and intended to terrify Lewinsky, who says she was told she was facing 27 years in prison and that her mother also had committed crimes. Starr's defense is absurd. He told the House Judiciary Committee that Lewinsky was only "advised of the nature of the possible charges against her and what the maximum penalty would be for each offense. At no time was Ms. Lewinsky told what her actual sentence would be." Starr further says his prosecutors never actually told Lewinsky they would charge her mother, only that she had committed crimes.

* Without notice to Clinton's lawyers or the Senate, Starr helped the House managers prosecuting the president win a court order requiring Lewinsky to answer their questions at a session from which Clinton's lawyers were excluded.

This list could be doubled with other missteps, not all of them Starr's alone. First, it was a gross error of judgment for the appointing court to choose Starr to replace Robert B. Fiske Jr., whom the attorney general had picked to investigate Whitewater before the reenacted independent-counsel law gave that power to the court. Starr was chosen shortly after the court's presiding judge, the very conservative David Sentelle, lunched with Sen. Lauch Faircloth, one of Fiske's and Clinton's most ardent Senate critics. Second, because Starr's chance for a high government post depended on a Republican in the White House, Starr lacked the appearance of independence required to head an investigation whose results could boost the GOP's hopes of recapturing the presidency. Third, Starr had (and still has) no trial experience in either civil or criminal cases.

The latest Starr contretemps, and potentially the most serious, surrounds last week's New York Times report of Starr's conclusion that a sitting president could be indicted and tried. The story was attributed to Starr "associates," including one who frequently talked with him on the issue. Starr quickly denied that his office was the source of the story and promised to investigate. Let's hope he's right, though it's hard to imagine who would qualify as an associate if not Starr's staff and formal and informal advisors.

The question is not whether the view attributed to Starr is right or wrong. No one really knows. Each of four possible answers to the question whether a sitting president can be indicted and tried finds support. The answers are yes; no; indicted but not tried; and indicted with judicial discretion to delay the trial until the president's term ends.

If Starr knew about and tolerated the story, he's toast, even if he did everything else right. That is not because the information qualifies as grand-jury secrecy, as Clinton lawyer David E. Kendall says, but because the only reason to have leaked the story in the middle of the impeachment trial would be to influence Senate votes on witnesses, censure, findings of fact and verdict.

If Starr associates leaked the story without his knowledge, Starr still has something to explain. Given the fact that two federal courts have found reason to believe that Starr's office leaked secret grand-jury information, and a judicially appointed master is now investigating that charge, how could this latest leak ever have happened? As head of the office, Starr's job under legal ethics rules, not to mention common sense, was to tell everyone who works for or advises him that under no circumstances may they talk to outsiders, especially reporters, about the office's work on pain of consequences too terrible to describe. I hope for his sake he did.

The unfortunate lesson from all this is bigger than the current investigation. It is that without both bipartisan support and evidence of guilt beyond a reasonable doubt, anyone who investigates a president will get bloodied indeed. The job is too political.

The fault here is not only in Starr, though he gets a large share of it, but also in ourselves. Only a madman will again take such an assignment.

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