Kenneth Starr and the Independent Counsel Act

Some observers have been shocked by Independent Counsel Kenneth Starr’s prosecutorial intrusion into the private life of President Clinton at a critical moment of our international affairs. They deplore his use of his powers in order to pursue possible misstatements in an ongoing private civil lawsuit. Such disapproving observers divide between those who blame Starr himself, those who blame the Independent Counsel Act, and those who blame both. How are we to assess such claims?

In the outrage following the “Saturday Night Massacre,” when Archibald Cox, in the middle of his investigation of President Nixon, was abruptly discharged by the acting attorney general on orders from the President, Congress passed the Independent Coun-sel Act to protect future independent counsels from arbitrary dismissal. While permitting removal of an independent counsel by an attorney general, the act required that the attorney general show appropriate cause for such removal and that the removal be subject to review by the United States District Court for the District of Columbia.

The statute went beyond this protection, however, and made it mandatory that the attorney general request the appointment of an independent counsel whenever he or she receives specific and credible evidence that the president (or other high-ranking officer in the executive branch of government) “may have violated any federal criminal law (other than certain misdemeanors).” This has been interpreted to apply to alleged misconduct by a high-ranking federal officer prior to his election or appointment and to misconduct unrelated to the discharge of the duties of his office—e.g., Whitewater, concerning a financial transaction several years before President Clinton’s first election. It has also been interpreted to apply to the investigation and prosecution of former Associate Attorney General Webster Hubbell for misconduct prior to his appointment to federal office, and to the investigation of President Carter’s chief of staff for alleged use of a forbidden drug.

The statute preserves the duty, which the attorney general has always had, to disqualify the Department of Justice from pursuing an investigation, and to substitute an independent counsel, if he or she perceives a conflict of interest. In any of these cases, if the attorney general concludes that there are “reasonable grounds to believe that further investigation is warranted,” he or she must request a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit to select the independent counsel. While the attorney general must supply the appointing court with information to assist it, the actual definition of the prosecutorial jurisdiction is left to the court.

If, after appointment, the independent counsel receives information about a federal criminal law violation not included within his original prosecutorial jurisdiction, he may submit this information to the attorney general, who is then required to conduct a preliminary investigation and determine whether to approve the extension of jurisdiction. In making this decision, the attorney general must accord “great weight” to the recommendations of the independent counsel. If the attorney general agrees that there are reasonable grounds to expand the area of investigation, the special division of the court may either expand the jurisdiction of an existing independent counsel or appoint a new independent counsel.

In the present case the attorney general requested expansion of Starr’s jurisdiction because she perceived that the Department of Justice had a conflict of interest, and because the Jones suit concerned the President. The three-judge panel gave Starr jurisdiction to investigate perjury and subornation of perjury by Monica Lewinsky “and others.” But the statute is not the basis for Starr’s intrusion into the Jones case. The attorney general could have taken the same action under her department’s regulations even if the Independent Counsel Act had never been passed.

Federal prosecutors obviously have authority to investigate perjury; but it would be impossible to prosecute every lie in every court proceeding. The decision to prosecute can never be mechanical. It requires prosecutorial judgment.

To evaluate Kenneth Starr’s investigation and the Independent Counsel Act, one must assume the worst—that, notwithstanding his vigorous denials, the President did, in fact, have a consensual sexual relationship with a member of his staff, Monica Lewinsky, and that he falsely denied this under oath and urged her to deny it under oath, in a private civil action, brought by Paula Jones, seeking to recover damages for his alleged sexual misconduct prior to his first election. The question is whether or not Mr. Starr should have started the investigation of the President’s supposed misconduct while discovery procedures and depositions were still proceeding in the Jones case.

It is doubtful that the alleged sexual conduct violated any federal law. Starr’s concern is said to be that the President may have committed perjury in his deposition taken by Jones’s lawyers and that he or Vernon Jordan, a close friend, may have suborned perjury by urging Lewinsky, in an affidavit she submitted in the Jones case, to falsely deny her relationship with the President. To violate federal law, the alleged perjury or subornation of perjury must be material to the issues of the Jones case. That materiality is now in question because, although reserving decision on this issue, the trial judge has excluded evidence regarding the Lewinsky matter from the Jones case.

Concern has been expressed that Starr’s intrusion into Paula Jones’s case, in the midst of pre-trial proceedings, was inappropriate. Some have said that, although it is his misjudgment that is at fault, his action may jeopardize the renewal of the Independent Counsel Act when it expires in 1999. The principal criticism of the investigations of prior independent counsels, including my own in the Iran-contra matter, has been not only the cost and time required for completion, but also a concern that an independent counsel, preoccupied with a narrow area of investigation, will become obsessive in an attempt to validate his efforts, and will take excessive action that a regularly appointed federal prosecutor would not take. This concern is eloquently expressed in the dissenting opinion of Justice Scalia in 1988 in Morrison v. Olson, 487 US 654, 701-703.

Evaluating Starr’s current activities against the background of this now controversial statute requires us to make judgments on the basis of information that is still incomplete, without knowing all the factors he may have taken into account. Monica Lewinsky was drawn into a series of conversations with an older friend and former White House associate, Linda Tripp, who, under the guidance of a literary agent, was planning to sell a book about President Clinton. At the suggestion of her agent, she secretly and illegally taped several telephone conversations in which she invited Ms. Lewinsky to discuss both her relationship with the President and her decision, allegedly encouraged by the President and his friend Vernon Jordan, to deny any sexual relationship.

Tripp delivered these tapes to Starr, who was investigating other, unrelated matters involving the President. Already pursuing a hypothesis that the President’s friend, Vernon Jordan, might have helped raise funds for Webster Hubbell to keep him from cooperating with Starr in the Whitewater investigation, Starr decided to have his jurisdiction expanded to include possible perjury by Lewinsky and its possible subornation by the President and Jordan. Because under Maryland law the tapes Tripp turned over to Starr had been obtained illegally, Starr had the FBI equip Tripp with a hidden recording device and had her induce Lewinsky to repeat her prior conversations. Tripp carried out this mission in a hotel barroom. The surreptitious recording apparently persuaded Attorney General Reno to agree to expand Starr’s investigatory jurisdiction to include the truth or falsity of statements under oath by the President and Lewinsky in the Jones lawsuit. By requesting extension of Starr’s jurisdiction, she apparently ratified his having ensnared Lewinsky before he had authority to do so.

Truth in the courts is less pristine than truth in the confessional. Ordinarily, prosecutors do not, as Starr is now doing, investigate perjury in a civil action while that action is pending. In sixty years of practice, I have never known this to happen. Most civil lawsuits begin with exaggerated allegations by the parties, which are narrowed and corrected as discovery and depositions proceed. Most cases are then settled; if they are not, the truth is ultimately decided by a jury, under the supervision of a judge. This permits an appropriate evaluation by the ultimate triers of fact, the judge or jury, of the motivation and materiality of factual errors. It is essentially a self-correcting procedure. It goes on in hundreds of thousands of cases without intrusion by a government prosecutor. The impact of a lie is often washed out by a settlement, by the abandonment of a claim, or by a ruling by the judge as to relevance and materiality. If the perjury was particularly flagrant or led to a miscarriage of justice, the judge or losing party may refer it to a prosecutor after the civil action is concluded. The statute of limitations allows five years for investigation.

In the Jones case, the President was no more than a private party. Against his wishes, he was forced to contest the suit during his presidency by a ruling of the Supreme Court. Notwithstanding the obviously inflammatory nature of the litigation, the Court unrealistically assumed that the case could proceed without unfairness to the President and damage to the country. The Supreme Court instructed the trial court to take into account the unusual difficulties of a president acting as a private litigant; but the SupremeCourt failed to realize that the attorney general would undercut its assumptions and expectations by authorizing Starr to project himself into the case.

Starr’s activity, even if in pursuit of his tenuous hope to ensnare Vernon Jordan, is not consistent with that of a professional prosecutor. Perjury cases are difficult. Regularly appointed prosecutors generally eschew perjury prosecutions except when the perjury blocks a criminal investigation. They avoid intrusion into civil litigation and they are very wary of being drawn into private civil litigation concerning conflicting claims of sexual activity. Starr’s somewhat sanctimonious pronouncement at his recent press conference that he was interested in “truth” seems to reveal an overblown conception of his responsibility.

The Independent Counsel Act has been renewed three times. During the past year, former independent counsels, legal scholars, and trial lawyers have debated its next renewal when it expires in 1999. In its last renewal, Congress added very limited controls concerning expense and duration. Some would abandon the act because of the still-existing danger of runaway prosecutors with essentially unlimited funds and no executive, legislative, or judicial supervision. Others, including former independent counsels Archibald Cox, Jacob Stein, and myself, would radically shrink the coverage of the act and restrict the mandatory appointment of an independent counsel to acts in office involving the unlawful abuse of government power by the president, vice-president, or attorney general. We would leave the attorney general with power to appoint, or to request the court to appoint, an independent counsel in any cases, if he or she perceives a conflict of interest.

There is no way to provide supervision for an independent counsel without destroying the purpose of the act. A court may not intrude in prosecutorial decisions without a disregard of the constitutional separation of the executive and judicial branches of government. Congressional intrusion, beyond the present provision for committee oversight, would subject prosecutorial decisions to political review. To restore supervision to the Justice Department would defeat the purpose of the act. In the end, the country depends upon the fairness, restraint, and good judgment of the independent counsel. He should nail on his office wall the long-respected standard pronounced by Supreme Court Justice Robert Jackson in his 1940 address to the lawyers of the Department of Justice:

If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.

It is in this realm—in which the prosector picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

—February 5, 1998