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By Kenneth Starr, a former federal judge and solicitor general. He was Whitewater independent counsel.
On Monday a superb career prosecutor took over as Whitewater independent counsel. The investigation has resulted in the convictions of 14 people, including a sitting governor of Arkansas, the business partners of the president and the first lady, and the former associate attorney general of the U.S.
Yet more remains to be done. Why? Partly because of factors beyond our control: an inability to reach an agreement with the Justice Department and the institutional limitations of independent counsels.
While on my way to Little Rock for the first time, just after my swearing in, I got a call from Attorney General Janet Reno, who graciously pledged that the Justice Department would be helpful and that she would do all she could to protect the independence of the investigation.
I expected the investigation would be fairly quick--several months, a year at most. To an outsider, the subject of the investigation--matters related to Whitewater Development Co. and Madison Guaranty Savings & Loan--looked straightforward. And I wasn't starting from scratch; I inherited the work of Robert Fiske, the "regulatory special counsel" appointed by the attorney general after a law authorizing independent counsels had expired but before Congress reauthorized it.
When I got to Little Rock, though, I found that the work went far beyond a real-estate transaction once upon a time. Mr. Fiske and his staff had been investigating cases of bankruptcy fraud, various tax matters and apparent irregularities in a gubernatorial campaign. These were not the main Whitewater/Madison issues, but they did involve people who held information highly useful to the investigation. Prosecutors often follow seemingly tangential leads in hopes of gaining the cooperation of key witnesses.
Mr. Fiske, like any federal prosecutor, had the authority to take the investigation in whatever direction seemed promising. I soon found that I did not. The Ethics in Government Act tightly limits the jurisdiction of independent counsels, who must get the blessing of the Justice Department before advancing onto new terrain. Indeed, with Justice's approval, our mandate grew to cover matters related to the firing of White House Travel Office employees, the accumulating of FBI files in the White House, the congressional testimony of a former White House Counsel, and Monica Lewinsky.
The investigation was slowed further by litigation over the authority of the independent counsel. Example: In June 1995, a grand jury indicted then-Gov. Jim Guy Tucker in one of the matters Mr. Fiske had investigated. The trial judge held that we lacked jurisdiction, even though the Justice Department had specifically authorized us to continue the investigation. The Eighth Circuit Court of Appeals reversed this ruling, but the defendants appealed again. Not until February 1998 did Mr. Tucker enter a guilty plea. Mr. Tucker was not unique. In the modern litigate-to-the-hilt legal culture, we were forced to defend our jurisdiction at every turn.
Neither ordinary federal prosecutors nor special counsels like Mr. Fiske are hamstrung by these sorts of jurisdictional defenses. That's one reason why, in my April testimony before the Senate, I recommended against reauthorizing the independent counsel law.
We were also slowed by the nature of what we were investigating: convoluted financial frauds, not simple whodunits. The evidence sometimes proved elusive. Important documents came to light long after we had sought them--in the White House book room, in a Little Rock attic, even in an abandoned car.
A crucial witness, Susan McDougal, served 18 months in jail to avoid testifying before a grand jury--and President Clinton, through his public statements, appeared to be encouraging her unlawful silence. Other witnesses suffered selective amnesia when we questioned them. Still other witnesses invoked dubious privileges--executive privilege to cover conversations with the first lady, for instance, and the never-before-imagined Secret Service privilege. We nearly always prevailed in these cases, but only after extensive litigation.
And although for a time we enjoyed a productive and collaborative relationship with the Justice Department, just as Ms. Reno had promised me, our relations soured over the last 18 months of my tenure. At times, political appointees in the department actively interfered with our investigation. (I hasten to add that the department's excellent career lawyers never did.)
Of course, the Lewinsky matter changed the landscape in a great many ways, some of which I have only recently recognized. In Federalist 65, Alexander Hamilton wrote that an impeachment is likely to ignite the public's "animosities, partialities, influence, and interest." That prediction, penned in 1788, became reality in 1998 and 1999. From the start, I knew that this job, done diligently, wasn't going to win me any popularity contests. And I was right. The partisan attacks, which began early in my tenure, escalated a thousandfold last year.
I once believed that this partisan assault was a purely personal hardship. I came to realize that the impact is larger. It has hindered the investigation. Consider: About 5% of all federal criminal trials end with a hung jury, when jurors cannot reach a unanimous verdict. In this investigation, 75% of trials have produced hung juries. In the first of these, in 1996, the jurors apparently had a good-faith dispute over the evidence. But in our two trials earlier this year, some people entered the jury room with agendas. Even judges sometimes appear to be swayed by politics. In such cases, we have almost always prevailed in a higher court. But the appeals consume time and resources.
Regrettably, the independent counsel's work is not yet complete. We completed the Little Rock investigations, and we made a great deal of progress toward a final report. But there are still important decisions to be made. Because of the public's apparent distrust, these are decisions that I could not prudently make. That's why, after thorough consultation with my colleagues in the office, I decided to resign.
Ideally, the office would close and the Justice Department would take over all pending matters. If a matter raised a conflict of interest, as some presumably would, the attorney general would assign it to a special counsel like Mr. Fiske. The department, however, rejected this approach, so the Independent Counsel office must continue--in the superb hands of Robert Ray.
I depart with a handful of regrets. We should not have sought or accepted additional jurisdiction from the Justice Department. There were strong reasons for doing so--often the new matter involved evidence with which we were already familiar--but in retrospect it was a mistake. Moving beyond Whitewater/Madison slowed our progress, increased our costs, and fostered a damaging perception of empire building.
I regret, too, that I did not try harder to explain myself and our work to the public. I believed, as my ethics adviser put it, that an independent counsel is above all a prosecutor, and prosecutors in our system speak only in court. But we were subjected to assaults that ordinary prosecutors never face. I should have answered them.
And I keenly regret that I cannot finish the job I undertook five years ago. But I do not for a moment regret my appointment or my tenure as independent counsel. Holding federal office is a humbling experience and a high privilege. I did not seek this responsibility, but I have done my best to uphold the public interest in each and every decision.
It has been my privilege to work with scores of diligent, highly skilled lawyers and investigators. When I think back on what we accomplished together--the facts we uncovered, the strategic decisions we made, the indictments we brought, the indictments we decided not to bring, the record we built--I am gratified.
It ain't over until it's over! They're going to indict someone close to Xlintoon. He has be acting strangely, more strangely than usual, over the past few days. Something is up and we will learn about it soon. Perhaps there is a "John Dean" in the Whorehouse Counsels office after all. Larry Klayman maintains that Hitlery was really the head of that office and used it as her personal Cheka.
I almost double-posted this, instead I'll just bump it.
The first thread with comments is at Click here
May God bless you Mr. Starr for the fine efforts you put forth. Your example will provide future generations with a model of integrity, moral fitness, and unswerving attention to duty. As a proud American, I thank you! I offer my apology for the behavior of the president of the United States and his minions in the way they attempted to slander you. Always know that there were many citizens like my self that look up to you.
Da Du
Starr's article with the added info that Severnside posted this morning (about Bill and Hill scheduling an ambitious round of overseas visits during their last year) certainly makes one suspicious that a shoe or two might drop. Bll and Hill always go abroad when the going gets rough here. But, still in all, I'm not going to hold my breath. I have a feeling that if anyone is hit, it will be after the Clinton's term is up. Why waste the time and effort in indicting and trying someone when the Clinton smear campaign can still destroy you and all the work you've done?
bttt
bttt
The Big Lie technique. Worked in Germany. Worked here.
"My guy" was superb on Larry King the other night. I tried in vein to get through but to no avail. I wanted to thank him for all his efforts and to assure him that history will vindicate him when all is said and done. I wanted to apologize for the fear he and his family have endured with threats on their lives; for failing to leave two years ago to take the Pepperdine job instead of induring the spin from the WH thugs; and to apologize that his dream of becoming a Supreme Court Justice has to be shelved. He has done the job he was hired to do and got shafted, big time..Larry King was quick to point out his approval rating was only 20%. Don't believe it.
When I think back on what we accomplished together--the facts we uncovered, the stategic decisions we made, the indictments we brought, the indictments we decided not to bring, the record we built--I am gratified.
And which indictments were those, Mr. Starr? And why?
Thanks for posting this!
I don't think it is over!!
And I would add...thank you Bob Ray for taking this very difficult job.
Theresa, you have always been right about Judge Starr....
his integrity is as obvious as Clintons corruption,
you just can't miss it.
Two things strike me reading this
article: 1. Mr. Starr's tone has become slightly
more aggressive.
2. He makes a REAL point of explaining
the reason DOiJ wanted to keep the ongoing IC
investigation
with an Independent, not a SPECIAL Counsel.....to run out the clock by fighting jurisdictional, and other(bogus) issues.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.
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