New Whitewater prober faces onus of being fair



WASHINGTON — WASHINGTON--It is a common idea these days that both the White House and Congress are out of touch with the American people. The appointment of Kenneth W. Starr as the special prosecutor in the Whitewater case suggests the judiciary can be added to those who just don't get it.

In a city in which there is a lawyer on every street corner, a special panel of federal appeals court judges has chosen a Republican partisan enough -- and perhaps politically ambitious enough -- to have accepted appointments from the last two Republican presidents. Ronald Reagan made him an appeals court judge at 37; George Bush lured him off the bench to serve as solicitor general in his administration.

Yet Starr was chosen, according to these judges, to preserve an "appearance of independence" that might have been compromised by retaining Robert W. Fiske because he was named as an independent counsel by Attorney General Janet Reno during the period that the independent counsel law had lapsed and the court lacked the authority.

Fiske is also a Republican, although perhaps not as politically active or ambitious as Starr, and has a sterling reputation as a former prosecutor, something Starr has never been. And up to this point, the only questions raised about his conduct of the Whitewater investigation have come from the conservative fringe and particularly those who apparently are never going to believe that Vincent Foster committed suicide although there is not a shred of evidence to support their suspicion.

The replacement of Fiske with Starr is especially bizarre when viewed in the political context. The presiding judge of the special panel, David B. Sentelle, is a conservative ally of Sen. Jesse Helms of North Carolina who was appointed to the bench by Reagan. The panel acted after being urged to do so by 10 conservative members of the House of Representatives led by Dan Burton of Indiana, who seems to be making a career of attacking the Whitewater inquiry, and by Floyd Brown, the head of a conservative "group" called Citizens United that has been dedicated to attacking President Clinton on the Whitewater case and funded the notorious Willie Horton television spot used against Michael Dukakis in 1988.

Then there is Starr's recent history. He had publicly disputed the contention of President Clinton's lawyers that the president should be immune from the Paula Jones sexual harassment lawsuit while serving. Although the issue has nothing to do with Whitewater, Starr's role in the debate is surely enough to raise doubts, even if unjustified, about his ability to serve as an impartial investigator of the president.

As Senate Majority Leader George Mitchell put it, there is now a "heavy burden" on Starr to demonstrate he can be evenhanded. "He's going to have to bend over backward," says another Democrat, Sen. John Kerry of Massachusetts, "to give people a perception of being completely fair."

Starr has a solid reputation and probably is going to need it. If he decides to go back over the ground Fiske already has covered, the inevitable implication will be that Fiske was either inept or engaged in a whitewash -- the arguments being made, of course, by the braying ultraconservatives who see Whitewater as the opportunity to bring down the Democratic president.

Theoretically at least, it is possible to make a logical case that the independent counsel should be someone chosen independently rather than by an agent of the Clinton administration. But the court has ignored the real world. There has been no evidence that Fiske has been anything but totally independent in the conduct of the inquiry. If the judges had kept him in the post, he would have become as directly under the court's jurisdiction as Starr now will be. And the country would have been spared the spectacle and expense of an investigation that now inevitably will become even longer.

White House Counsel Lloyd Cutler says he has "every confidence" in Starr. But the idea that the court was obliged to replace Fiske and to replace him with a conservative as prominent as Starr defies common sense. So the voters are entitled to infer that the judiciary can be as out of touch as the politicians in the White House and Congress.

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