It is tempting to agree with Kenneth Starr that the Independent Counsel Act should be allowed to expire this summer. That is what he told the Senate Governmental Affairs Committee the other day, as the committee members pondered whether to reauthorize the act, and he should certainly know. Aside from being a respected constitutional lawyer, a former Solicitor General and a former Federal judge, he is the living symbol of error and abuse by an independent counsel. Moreover, his own misuse of his authority in that post seems certain to continue, with the prosecution of Julie Hiatt Steele-lending still more weight to his argument against the appointment of future independent counsels.
On the editorial page of The Wall Street Journal , Mr. Starr’s Senate testimony was said to have “surprised many.” Yet he was merely returning to a consistent position he had held until he accepted his own appointment to investigate Whitewater in August 1994. Having argued against the constitutionality of independent counsels when he represented a vulnerable Republican administration, he reversed temporarily to make an exception when the target was a Democratic President. Clearly, he felt that Bill Clinton deserved an unconstitutional prosecutor, and he was even willing to take on the task himself.
That telling inconsistency signaled Mr. Starr’s partisan agenda at the very outset, despite his many public promises of “complete fairness.”
At this late date, it isn’t easy to determine what Mr. Starr really believes about the statute. Although his testimony droned on at length about various matters, his true subject was the justification of his own spotty record. He seized the occasion to open his awaited campaign of self-rehabilitation (which will move on in due course to talk television and bookstores).
What Mr. Starr suggested was that his costly five-year probe produced so little for two reasons beyond his control. First, he argued, the Independent Counsel Act is inherently flawed because it permits defendants to delay justice too long by raising jurisdictional questions. The second excuse Mr. Starr proffered was to complain about the “attack strategy” employed by the White House to discredit him. It is “impossible,” he said, “for an Independent Counsel to respond effectively to attacks.” He implied that his independence from the Clintons had been “misrepresented as antagonism.” To fully appreciate the disingenuousness of those remarks, which went on at some length, it is necessary to recall the tsunami of leaks from Mr. Starr’s office, which are now the subject of at least one outside investigation.
In a just dispensation, Mr. Starr seems to feel, his deputies would be free to whisper damaging information about targets secretly to favored journalists, and even to hint at pending indictments of the President or the First Lady-all without the risk of any reply in kind. Of course, most of the “attacks” that upset him so terribly were merely the result of open debate in a free press.
The deepest problem of the Independent Counsel Act, which functioned satisfactorily if not perfectly until Mr. Starr’s debut, are the same that exist in any scheme of legal oversight: It must rely upon the honesty and fairness of those who administer it.
Mr. Starr unwittingly drew attention to this truism when he said that the three Special Division judges who appointed him “likewise were subjected to remarkable attacks, to which they could not respond.” Actually, only one-the presiding judge, David Sentelle-was widely criticized. And when Mr. Sentelle appeared before the same Senate panel the other day, he gave ample reason for further concern about his reputation for excessive partisanship and lack of discretion.
It was Mr. Sentelle who met with his Clinton-hating home-state senators in July 1994-Lauch Faircloth and Jesse Helms of North Carolina-just weeks before he did their bidding by removing Mr. Starr’s predecessor, Robert Fiske. When news of that meeting caused a furor, the judge claimed in writing that “nothing in these discussions concerned independent counsel matters.” When he testified under oath, however, Mr. Sentelle admitted, “They [the Senators] may have said, ‘Have you appointed an independent counsel yet?’ And I would have said No. There may have been some discussion in one sentence of had we done it.”
As his memory improves, Mr. Sentelle may someday recall exactly what he discussed with the Senators, who wanted him to get rid of the highly professional Mr. Fiske.
The prospect of a new Bush or Gore administration free from investigatory oversight by anyone but its own appointees will mean we have returned to the bad old days of the Nixon era. Reforms that might improve the Independent Counsel Act deserve careful consideration, but one seems imperative: The likes of David Sentelle must be removed from overseeing any future appointments.