Judges, by 2-1 vote, let Starr continue Clinton investigation

Majority says court can't second-guess the work of the independent counsel

August 19, 1999|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- The usually harmonious federal court that selects independent prosecutors got into a public spat yesterday over when to stop the investigation of President Clinton and Hillary Rodham Clinton.

The dispute ended with a 2-1 vote allowing independent counsel Kenneth W. Starr's inquiry to continue.

While the ruling left the investigation where it was -- with Starr having no pending cases but reportedly still not finished -- it produced a sharp exchange among the three judges on the panel of the U.S. Circuit Court of Appeals.

The two judges in the majority accused their dissenting colleague, who wanted the prosecutor to justify the need to continue, of trying to take on an unconstitutional supervisory role over Starr.

The criminal investigation of the Clintons and their associates has gone on for five years. Under the independent counsel law, five years marks a point at which the three-judge court is directed to weigh whether to terminate such a probe.

Circuit Judge David B. Sentelle of Washington and Senior Circuit Judge Peter T. Fay of Miami said the court simply has no power to second-guess Starr's work. If it gets assurances from Starr, as it has, that he has more to do, that ends the matter, those judges concluded.

But Senior Circuit Judge Richard D. Cudahy of Chicago dissented. He lambasted the majority for its "passivity," suggested it was inviting "an endless investigation" and accused Sentelle of rebuffing Cudahy's efforts to get more information from Starr.

Cudady also complained that Sentelle has been talking privately with Starr about the issue instead of getting formal, specific information about why he should not be shut down.

"There is a strong basis for termination, and it would be very difficult to persuade me otherwise," Cudahy wrote.

Yesterday, the two-judge majority, viewing its role as very limited, said it has received Starr's assurance "that his work is ongoing. We have not looked beyond the public record to seek support."

Still, the majority said, the investigation has led to the impeachment of the president, 24 indictments and 16 convictions. Clinton was acquitted by the Senate in the impeachment trial, and has not been charged with any crime. It is unclear whether Starr is considering possible charges.

Starr said this month that he wants to end his probe "at the earliest practicable moment," but set no deadline. He is working on a final report to Congress.

Neither Starr's office nor the White House offered any comment on yesterday's decision.

The three judges on the independent counsel panel were appointed to that duty by Chief Justice William H. Rehnquist. They also serve on regular federal appeals courts.

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