Focus shifts to Starr's conduct Some of prosecutor's actions in probe draw criticism, investigation

October 19, 1998|By Susan Baer | Susan Baer,SUN NATIONAL STAFF

WASHINGTON -- As the impeachment inquiry of President Clinton draws near, charges of misbehavior and abuse of office are also swirling around the president's chief nemesis: independent counsel Kenneth W. Starr.

Critics are questioning everything from the prosecutor's initial request for authority to investigate the Monica Lewinsky matter to his strong-arm tactics with witnesses to the sexually graphic and argumentative nature of his report to Congress.

Late last week, White House special counsel Greg Craig said some of Starr's actions could amount to "entrapment." Democratic Sen. Carl Levin of Michigan, accusing the counsel of exceeding his authority and violating Justice Department policies, said, "Kenneth Starr has placed himself above the law."

Indeed, Starr has done things no other special prosecutor has done, such as subpoenaing Secret Service agents and turning over to Congress unprecedented amounts of grand jury testimony, much of it salacious in nature.

Some of Starr's actions throughout the Lewinsky investigation have sparked inquiries of their own. A federal judge, finding evidence that Starr's office leaked secret grand jury material to the media, has recently ordered a "special master" to determine whether Starr violated federal laws and should be punished. The Justice Department, at the request of Clinton's lawyer, is reviewing Starr's actions in seeking permission to investigate the Lewinsky matter.

But some of Starr's aggressive and seemingly overzealous tactics may be more a reflection of the ambiguity and looseness of the independent counsel statute -- and more a matter of questionable judgment by someone who's never before been a prosecutor -- than clear-cut violations of law, say a number of lawyers and independent counsel experts.

"A prosecutor's power is constrained mainly by judgment," says Katy Harriger, a Wake Forest University professor and author of a book on independent counsels. "So when you say, 'exceeded his authority,' that authority is ambiguous."

Still, the president's allies hope that highlighting some of Starr's actions will blunt some of the potential damage to Clinton by undermining the credibility of the probe.

Polls suggest the White House could have some success with such a strategy. Starr is seen by many as a partisan prosecutor out to get the president. A New York Times/CBS News survey conducted last week showed that 75 percent of Americans think Starr's investigation was not worth the time and money.

If an analysis of Starr's activities has no impact on Clinton's fate, the intense controversy surrounding this investigation is likely to have other long-term effects, namely, the amending or even killing of the 20-year-old independent counsel statute.

To focus attention on the investigator, congressional Democrats are hoping to call Starr -- and possibly his associates -- to testify before the House Judiciary Committee, which is conducting the presidential impeachment inquiry.

They are interested in, among other things, whether Starr had a conflict of interest in taking on the Lewinsky investigation since he had contacts in 1994 with lawyers for Paula Corbin Jones, who brought a sexual misconduct lawsuit against the president and sought Lewinsky as a witness.

Many lawyers believe Starr would not have been given the authority to investigate the Lewinsky matter if he had disclosed to Attorney General Janet Reno his earlier contacts with the Jones team. For his part, Starr said his office "did not mislead the Department of Justice regarding relevant facts relating to its jurisdiction, or any expansion thereof."

Starr's defenders see the increased attacks on him as part of a White House strategy to "distract attention from the man who committed crimes," as Washington lawyer Theodore Olson, himself the target of a 1986 independent counsel probe, says.

Starr spokesman Charles Bakaly says any attempt to change the subject from Clinton's misdeeds will ultimately fail because "the facts the grand jury has gathered will remain the facts."

Even apart from his previous contacts with the Jones lawyers, Starr's initial request to Reno last January to expand his Whitewater inquiry to investigate Lewinsky's sworn denial of a sexual relationship with Clinton has raised questions -- and not just from Clinton allies.

Armed with the tapes that Linda R. Tripp secretly recorded of her conversations with Lewinsky, Starr convinced Reno that witnesses in the Lewinsky matter overlapped with his Whitewater probe.

'Dubious' bridge

Lawrence Walsh, the Republican independent counsel in the Iran-contra investigation, says the bridge to the Lewinsky matter that Starr used to win authority was "dubious," showed no evidence of criminal conduct by the president and undermined the legitimacy of the entire investigation.

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