Counsel With Conservative, Devout Roots

“Who better to bring Bill Clinton to justice than a hymn-singing son of a fundamentalist minister?”

--Wall Street Journal editorial, September 1998, after release of the Starr Report

*

Deputy Atty. Gen. Eric Holder had been attending a Washington Wizards basketball game. It was after 10 p.m. when the duty officer put the call from Jackie Bennett through to Holder’s cell phone.

Bennett, the deputy to the independent counsel who had been investigating Clinton for more than three years, wanted a meeting the next day, Jan. 15, 1998.

“We are sort of into a sensitive matter. Breaking,” Bennett told Holder. “Involves people at and associated with White House . . . . Working with FBI. Highly sensitive.”

“Know this is vague,” Bennett added. “I apologize.”

“No kidding,” Holder replied. “Can I call the AG [Atty. Gen. Janet Reno]?”

“I don’t want to tell you not to.”

Holder reminded the prosecutor that the deputy is the attorney general’s alter ego, not an independent operator.

“I know that, but this is dicey enough. I called you,” Bennett said, leaving unsaid his mistrust of others in the Justice Department.

Tip in Jones Case Buoys Investigation

At last.

Preparing for their visit to Holder’s spacious office the next evening, Bennett and the other senior lawyers from the independent counsel’s office could hardly be faulted for feeling a measure of excitement, even grim satisfaction.

More than once over the preceding four years, it had seemed such a day might never come. Then a flurry of telephone calls over a long weekend, starting with a tip that their quarry was even then in the process of obstructing justice in Paula Corbin Jones’ sexual harassment case, produced the breakthrough.

“It was like we got a tip there’s going to be a bank robbery and if you’re outside, you’re going to see guys going in with ski masks,” a person who was there said afterward. And one of the guys in a ski mask was alleged to be the president of the United States.

For a federal prosecutor investigating a white-collar matter, a heads-up about a crime in progress is almost unheard of. “Usually in white-collar crime, you arrive and the body is already dead,” one official said. “This was an ongoing enterprise.”

It did not stretch the facts to say, as one participant put it later, that “the world changed in seven days.” Clinton’s investigators were about to make history.

Not that they hadn’t been trying all along.

When Kenneth W. Starr was appointed independent counsel in August 1994, he had set aside the work of his predecessor, Robert B. Fiske Jr., and gone back to Square One. Every inch of ground had been combed again: the firing of the White House travel office staff, the presence of sensitive FBI files in the offices of White House political aides, the suicide of deputy White House counsel Vince Foster. The staff had been expanded and spurred to greater effort. Every weapon in a prosecutor’s arsenal had been wheeled out; every tip and lead pursued.

“To be aggressive was something he valued,” one lawyer said of Starr during that period.

Even so, the ultimate quarry seemed always to remain just beyond reach. The president’s lawyers had fought back relentlessly, challenging, appealing, delaying. The White House had also unleashed a remarkably successful counterattack in the court of public opinion. Criticism was unremitting--”every damn thing,” as one exasperated target of the White House attacks described it.

Worse, witnesses the prosecutors were sure had incriminating tales to tell refused to play ball. Collateral figures were bagged, but Bill and Hillary Rodham Clinton remained untouched by the panoply of investigations lumped under the term “Whitewater.”

Month by month the frustration had grown.

In February 1997, Starr had announced that he would end that chapter of his life and move to California as dean of the Pepperdine University law school. He eventually thought better of it and put the move on hold, but the temptation to run to sunshine said something about his frame of mind.

Starr apparently did not notice a Valentine’s Day message that appeared among the Washington Post personal notices on Feb. 14, 1997--three days before he announced his plan to go to Pepperdine. How could he have guessed that “Handsome,” the person addressed in the tiny advertisement, was Bill Clinton? Or understood why the signer had chosen as her message the words Romeo spoke to Juliet after climbing her garden wall:

“With love’s light wings did I o’er perch these walls.

“For stony limits cannot hold love out,

“And what love can do, that dares love attempt.”

“Romeo and Juliet 2:2

“Happy Valentine’s Day. M.”

Well, Starr could understand the message now. So could Bennett, his trusted aide, who was preparing to detonate a bombshell in Holder’s office. Soon, almost everyone in the English-speaking world would know that “M” was a former White House intern, banished to the Pentagon and desperate to regain her access to the Oval Office. Her name was Monica S. Lewinsky.

The investigative breakthrough, however, would forever be colored by the controversy that had already developed around Starr himself.

More than any of his predecessors in the peculiar role of independent counsel, Starr had been a figure in dispute. The harder he worked and the wider he cast his nets, the lower his standing with the public fell and the higher Clinton’s rose.

The challenges to Starr’s legitimacy--both calculated attacks by Clinton supporters and less-partisan questions raised by independent critics--began even before he got the job.

The first questions had to do with the ousting of Fiske, an experienced prosecutor with a solid Republican pedigree who was nearly eight months into the investigation.

The law authorizing the job of independent counsel, passed in 1978 in response to Watergate, had expired at the end of 1992, just before Clinton began his first term. He had campaigned for reauthorization but Republicans, angry over an independent counsel investigation of the Iran-Contra affair during the Reagan administration, had ganged up to kill it.

In January 1994, as questions mounted over the Clintons’ Whitewater real estate venture in Arkansas, the president asked Reno to appoint an independent counsel on her own authority. She chose Fiske.

Later that year, Republicans reversed field and reauthorized the independent counsel law, with a provision giving power of appointment to a three-judge panel of the U.S. Circuit Court of Appeals in Washington. Chief Justice William H. Rehnquist, given the power to select the panel’s members, chose David B. Sentelle, a conservative Republican political activist before his appointment to the federal bench, to be its chairman.

To remove any question about the integrity of the Whitewater inquiry, Reno asked the three-judge panel to give its blessing to Fiske. The request was considered almost pro forma, even though Fiske had drawn fire from Senate Minority Leader Bob Dole (R-Kan.) for insufficient aggressiveness, and Sen. Lauch Faircloth (R-N.C.) was concerned about Fiske’s apparent conclusion that Foster had died as a result of suicide, not a criminal conspiracy.

Instead, the three-judge panel surprised just about everyone by ordering Fiske replaced by Starr--and a furor erupted. Sentelle was a protege of Sen. Jesse Helms (R-N.C.), and he had met with Helms and Faircloth just before announcing the decision on Fiske.

“To the best of my recollection, nothing in these discussions concerned independent counsel matters,” Sentelle declared later. “Sens. Faircloth and Helms are old friends of mine and I have lunch with them from time to time.”

Starr’s own impartiality was also questioned because he had publicly helped Jones’ lawyers. They had sought the help of his law firm in building their claim that a president can be sued for civil damages while in office, a position eventually upheld by the Supreme Court.

On the other hand, Starr was a widely respected lawyer who had served as a federal appellate court judge and then as solicitor general under President Bush. And whatever the partisan shadow on his selection by the three-judge panel, Starr had been on Reno’s own short list of prospects when she chose Fiske.

At least in the early years, Starr’s lack of experience as a prosecutor and his decision to remain active in his private law practice contributed to criticism that his inquiry was dragging on unnecessarily.

His tin ear for political appearances led him to give speeches and otherwise publicly associate himself with individuals and groups that were openly hostile to Clinton, including the tobacco industry and Pat Robertson, the Christian Right leader who had called for Clinton’s removal. Clinton supporters would also note that the position Pepperdine offered to Starr had been financed at least in part by Richard Mellon Scaife, a multimillionaire supporter of far-right causes who helped back efforts to uncover scandal about Clinton. Starr insisted he had never met Scaife.

In time, the independent counsel’s credibility would become almost as great an issue as the president’s.

Opinion About Starr Polarized

If the circumstances of Starr’s selection and some of his early miscues raised questions of appearances, the ultimate polarization of opinion about the independent counsel grew in deeper soil.

James Carville, the president’s sometime political strategist and full-time defender, has denounced Starr as “an abusive, privacy-invading, sex-obsessed, right-wing, constitutionally insensitive, boring, obsequious and miserable little man.”

That is an ultra-polemical way of saying what many of Starr’s more moderate critics contend:

That his strict religious upbringing--his minister father once denounced a woman in his congregation for milking her cow in her own barnyard while wearing Bermuda shorts--combined with his conservative political ideology and personal ambition to create an inquisitor of the most severe definition.

They point to Lewinsky’s grand jury testimony about her experience when FBI agents and Starr’s lawyers first confronted her in a suburban Washington hotel early last year. Armed with tapes made by former White House employee Linda Tripp, in which Lewinsky contradicted her sworn affidavit in the Jones case regarding her relationship with Clinton, Starr’s team wanted her to cooperate. When she asked to talk to a lawyer before answering their questions, she said, Bennett and others sought to dissuade her. She might risk losing her chance for immunity from prosecution, they suggested.

When she asked to call her mother, Lewinsky said Bennett responded, “You’re 24, you’re smart, you’re old enough. You don’t need to call your mommy.”

For his part, Starr recently portrayed himself as a simple Joe Friday, the straight-ahead LAPD detective of early television, who had opinions about nothing and wanted “Just the facts, ma’am.”

That dispassionate, almost mechanistic view is shared by some of Starr’s prosecutors. “I don’t think about this as a series of crucial decisions,” one source close to Starr said. “I think of everything we’ve done as applying standard techniques, Justice Department techniques. These are the tools you’re given. You set about employing them.”

This source subscribed to the same “culture wars” theory as Carville. He described the other side as believing: “We don’t approve of what you’re doing. We don’t think you’re legitimate. It’s all politics. Ken Starr is a tool of the Republican Party. Therefore the rules don’t have to be obeyed . . . I am entitled to do anything, including lie under oath, to keep you from doing this illegitimate thing.’ ”

Where does the truth lie?

There are at least slivers in both views of Starr: as vengeful inquisitor and as mild-mannered fact-checker.

Investigators’ Leeway to Pressure Suspects

Starr’s defenders appear to be correct when they say that almost everything he and his investigators did to gather evidence and testimony lay well within the bounds of traditional tactics. Courts have long given investigators wide leeway to pressure, even trick suspects into divulging information. The initial encounter with Lewinsky did not push the legal envelope; nor did the use of surreptitious tape recordings.

On the other side of the ledger, it is clear that Starr was deeply conservative and deeply involved in Republican politics.

When controversies erupted over his investigation, Starr’s telephone lines would often hum with calls from Republican members of Congress.

Going deeper is the charge that Starr lacked a sense of balance and restraint.

Critics point to the seemingly gratuitous piling up of salacious detail in Starr’s final report to the House Judiciary Committee recommending Clinton’s impeachment.

Then there was the much-criticized decision to call Lewinsky’s mother, Marcia Lewis, before the grand jury because the evidence at least arguably suggested that Lewis had been involved in some of her daughter’s intrigues.

Balanced or not, Starr’s policy of using the full arsenal of prosecutorial tools ultimately helped turn the investigation into the legal equivalent of a bar fight.

Small wonder that Starr’s aides were infused with a sense of standing at a turning point on that January evening of last year. Who could doubt that history was being made? So palpable was the sense of it that, before many weeks were out, some would see their work as the stuff of a future movie. A few would even speculate about which Hollywood stars would be chosen to play their parts.

As darkness gathered outside the windows of Eric Holder’s office, the deputy attorney general waited with an aide to see what lay behind Bennett’s telephone call the night before.

“We have unhappily come across a very sensitive matter,” Bennett began.

His lip-service regret quickly disappeared in an avalanche of allegations. Tripp had called Starr’s office the night before, Bennett said. She said a friend, Lewinsky, was recruiting her to help conceal a personal relationship with the president, an effort that would involve perjury and obstruction of justice.

Investigators had gone to Tripp’s home and interviewed her until well past midnight, Bennett said, then spent Tuesday analyzing the tape recordings she had made of telephone conversations with Lewinsky.

What Bennett wanted now, as Starr made clear in a follow-up letter hand-delivered to Reno that night, was authority to expand the independent counsel’s investigation.

“I am speaking for the office,” Bennett told Holder. “From what we know about what Tripp has brought to us, this is real. There is inchoate criminality. It goes into the White House and very likely involves the president.”

“I’m sorry to leave you with this,” Bennett concluded.

An apparently stunned Holder could only reply: “I never anticipated this.”