10 Things We Learned From Starr

When Kenneth W. Starr was appointed independent counsel to investigate Whitewater five years ago, most people viewed him as the picture of moderation. People who met him during the 1980s were struck by his precision, his balance and his gentility. These qualities made him well-regarded as a federal judge in Washington, and as President George Bush’s solicitor general, the person the United States chooses to represent it in the most dignified of forums, the U.S. Supreme Court.

When Starr resigned his post last week, America had a far different vision of him. He has been described variously as a prude and a right-wing zealot, and the office of independent counsel is battered and bruised as it limps toward the finish line.

What happened? Had Starr been fooling the world for years with his nice-guy routine, before showing his true stripes after 1994? The explanation is far more complicated. To be sure, Starr made a lot of mistakes, for which he bears responsibility. But many of his mistakes were predictable consequences of being placed in a legal framework that was itself deeply mistaken. As teachers of constitutional law and history, and persons who still like and respect Starr, we see the independent-counsel ordeal as offering lessons not just for Starr but for everyone.

Here is our top-10 list:

10) Presidents can’t be investigated the way gangsters are.

Start with the most recent development: the selection of Robert W. Ray as Starr’s replacement. The choice of Ray symbolically illustrates structural problems with the independent-counsel process. Ray is a career federal prosecutor who made his name dismantling a gang believed responsible for 80 homicides. Fighting gangs is important business, but different business from investigating a president who twice received the affirmation of 50 million U.S. voters.

Pursuit of the president involves constitutional law in addition to criminal law. Whether Ray appreciates this remains to be seen, but Starr’s office did not. Remember Starr’s efforts to force bookstores to divulge the names of books bought by Monica S. Lewinsky? To pressure her mother into describing intimate mother-daughter talks? To deny the White House ordinary attorney-client privileges enjoyed by all other CEOs and corporations? To shred the presumptive confidentiality of Oval Office conversations between the president and his advisors? Even if all these tactics were legal (and some shouldn’t be), prosecutors are paid for their discretion and judgment. Hardball tactics appropriate when pursuing violent criminals seem outrageous when pursuing the head of the federal executive branch.

9) Starr’s experience should be judged alongside other independent counsels.

Many problems with Starr’s operation are far from unique. Just look at where Ray came from: independent counsel Donald C. Smaltz’s investigation of former Agriculture Secretary Mike Espy, who was acquitted in December of corruption charges many believed should never have been pursued. If Starr’s and Smaltz’s offices aren’t enough evidence, there are plenty of people (us included) who complained about Lawrence E. Walsh’s independent-counsel office as he investigated a Republican administration in the wake of the Iran-Contra scandal. The real problem, however, is not Starr, Smaltz and Walsh; it is the independent-counsel law itself.

8) Judges should not pick prosecutors.

Part of the problem stems from the way Starr was appointed, pursuant to the independent-counsel law, by a group of judges. From one angle, the whole thing looks partisan, even conspiratorial: After meeting with Republican senators, Republican judges on a special panel handpicked by a Republican chief justice pick a Republican independent counsel from a previous Republican administration. This appointment propelled the judiciary into partisan and personal politics.

Suppose judges did quietly consult senators before picking Starr. Is it surprising that judges, unfamiliar with making political appointments, would seek guidance from politicians? Of course not. What is surprising is we did not see the way this compromised judicial integrity years ago.

7) Judges should not play prosecutor.

Given limited information, the special panel unsurprisingly picked someone like themselves. Starr was one of their own, a federal judge rather than a prosecutor. But judges don’t necessarily make good prosecutors; the two jobs often require different skills. So Starr made some mistakes and showed poor prosecutorial judgment. He relied on his assistants, whom he knew were more experienced prosecutors than he. But underlings carry their own set of problems.

6) A self-selected group of prosecutors may lack balance.

Starr’s worst calls--his hardball investigative techniques and his outlandish decision to describe President Bill Clinton’s invocation of litigation privileges as impeachable offenses--resulted, in part, from the zeal and partisanship of his advisors. But this problem, too, is created by the law. The independent-counsel offices are staffed by volunteers. Those most likely to volunteer already don’t particularly like the target of the investigation. As time goes on, moderates leave, and only extremists hang on or join up. Moreover, individuals on temporary detail are harder to control than a permanent organization, like the Justice Department.

5) Efficiency is overrated.

One persistent criticism of Starr is that he spent too long lurching from one scandal to the next, from Whitewater to the White House travel office to Filegate to Lewinsky. Of course, Starr did not lurch alone; at every turn, Atty. Gen. Janet Reno kept referring new matters to him. These referrals made sense from an efficiency standpoint: Starr’s operation was up and running, and the cast of characters in the various events--for example, Vernon E. Jordan Jr. and Linda R. Tripp--overlapped.

But here, as elsewhere in the law, efficiency comes at a cost: fairness and the appearance of fairness. The system of checks and balances and division of powers set up by the Constitution are not very efficient, but they worked before independent counsels came along, and will work after they go.

4) Less (independence) is sometimes more.

While on “Larry King Live” Monday, Starr observed that investigators like the man probing the Waco incident, former Sen. John Danforth, who was selected and is removable by Reno, have freer rein than an independent counsel. At first blush, allowing the target of investigation (Reno’s Justice Department and its FBI) to pick the investigator reeks of self-interest. But, in important ways, Starr is right. Compare Starr to Danforth. From the instant Starr took office, he was vulnerable to attack as having been picked by right-wing judges as part of a political plot. Whatever the truth of that criticism, it played well politically.

But that tactic cannot work against Danforth, because he has been handpicked by the administration. If Starr, frustrated by White House stonewalling, had quit early on, the public would have called him a quitter. If Danforth gets little help and threatens to quit, he has far more leverage because of the political damage his departure would cause the administration, in the same way that President Richard M. Nixon’s firing of Archibald G. Cox before there ever was an independent-counsel law placed Nixon under so much pressure that he had to appoint another investigator, Leon A. Jaworski.

3) The buck has to stop somewhere.

Much of constitutional law is about accountability, both within government and to the people in whom sovereignty resides. But the independent-counsel process blurs the lines of constitutional authority. The design and intent of the law make Starr not easily accountable to the attorney general or Congress.

Worse still, the independent-counsel law sets up a responsibility shell game. Starr does the dirty work and hands his report to Congress, which then publicizes it automatically. But neither takes responsibility. If Americans think Starr pushed too hard or that his report was improperly publicized, Congress can say, “Fault him, it’s his report.” Starr can turn around and say, “Fault Congress, I’m following the act they created.” Both are right, which shows something was terribly wrong.

2) Courts are not saviors.

In public, Starr has observed with pride that many of his actions have been validated by courts, the implication being that he was therefore right. Over the last 50 years, all of us have tended to equate legal rulings with the rule of law. But the Starr episode demonstrates that courts are fallible. A court appointed an inexperienced prosecutor and repeatedly affirmed expansions of his mandate. Courts responded to the unsympathetic facts of Clinton’s case by issuing dubious rulings on executive privilege. A court--the Supreme Court--wrongly rejected in 1988 a constitutional challenge to the independent-counsel statute itself. These uncorrected mistakes demonstrate that giving important matters to the courts to decide or supervise is not always the answer.

1) In fiascoes like this, blame belongs to everyone.

When things are really messed up, there are usually many people and institutions to blame. That, indeed, is one consequence of checks and balances and divided powers. So it has been with the Starr independent-counsel experience. Blame not just the Starr office, but blame the Democrats in Congress for reenacting the independent-counsel law in 1994, over the protests of Republicans. Blame Clinton, not just for doing things that triggered calls for independent counsels, but for lauding the independent-counsel statute and signing it into law. Blame the special panel for bungling the appointment decision. Blame Reno for expanding Starr’s mandate over and over. Blame the GOP Congress in 1998 for ignoring its own objections to the independent-counsel law and passing the Starr report through to the public. Blame the Supreme Court for upholding the independent-counsel statute and failing to seize opportunities to overrule its earlier mistake.

Finally, blame constitutional-law professors, many of whom supported the independent-counsel law in the past and some of whom have been slow to admit the error of their ways. But please don’t ask us for names.