The campaign bookkeeping for next year’s U.S. Senate race in New York already looks complicated, thanks to Kenneth Starr. According to published reports, the independent counsel plans to stay in business long enough to issue a “blistering” report about Hillary Rodham Clinton, now the likeliest Democratic contender in that contest.
For Republican election lawyers, the ticklish question will be whether they must include the Starr report’s sequel as an in-kind contribution (using taxpayer funds) to their candidate against her. It is hard to find any other real justification for Mr. Starr’s continuing drain on the Treasury.
The independent counsel may think it is his “duty” to issue such a report, although he has acknowledged finding no prosecutable violations of law in any of the matters remaining on his docket: Whitewater, the firing of the White House Travel Office staff, the mishandled F.B.I. files and the rediscovery of Mrs. Clinton’s old Rose Law Firm billing records. But no duty requires him to write a report tarring individuals he cannot indict, even if they happen to be Democrats. In 1993, almost a year before Mr. Starr was appointed to investigate the Clintons, the Independent Counsel Act was amended to prevent the kind of political abuse with which he now reportedly hopes to conclude his service.
As a leading expert on the law governing his office, Mr. Starr surely knows this. But if he was unaware of the statutory restrictions on any lingering impulse to smear, he has been duly advised by Senator Carl Levin-the tough Democrat of Michigan who oversaw the reauthorization of the independent counsel law-in a sharp letter dated June 14.
It begins by noting the front-page warning about a forthcoming “blistering report” on the Clintons that appeared in The New York Times on June 13. The Senator’s letter then reminds Mr. Starr that in the course of renewing the Independent Counsel Act in 1993, the Senate adopted an amendment by Senator Robert Dole “to limit the scope of the final report required of independent counsels … [and] to remove … the requirement that an independent counsel explain the reasons for not prosecuting any matter within his or her prosecutorial jurisdiction.” The clear intent of that amendment was “to prohibit the expression of opinions in the final report regarding the culpability of people not indicted.”
As Mr. Dole said on the Senate floor, a prosecutor who fails ought to move on, rather than “spend eight months, at taxpayer expense, writing a report memorializing his efforts and blasting the very people he failed to convict.” Of course, Mr. Dole was referring to the Iran-contra independent counsel Lawrence Walsh, a lifelong Republican who was often vilified by fellow Republicans and praised by Democrats. Yet the Senate Democrats willingly took Mr. Dole’s point, and incorporated his views into the conference report on the 1994 version of the Independent Counsel Act.
“The power to damage reputations … is significant,” they wrote, “and the conferees want to make clear that the final report requirement is not intended in any way to authorize independent counsels to make public findings or conclusions that violate normal standards of due process, privacy or simple fairness.”
Mr. Dole’s amendment aimed to require independent counsels to behave more like normal prosecutors, who aren’t permitted to attempt in a written report what they couldn’t achieve in a grand jury. But the increasingly isolated Mr. Starr probably chafes under such temperate guidelines. According to Bob Woodward’s new book Shadow , the independent counsel fought with his own staff last year to keep the most prurient details of the Monica Lewinsky affair high up in the original Starr report. “I love the narrative!” he reportedly told his nervous associates when they fretted that the report’s lascivious text would make him look like “a sex-crazed prosecutor.”
If the Woodward book is to be believed, Mr. Starr was advised by his ethics counselor Sam Dash that they lacked sufficient evidence to indict Mrs. Clinton, who Mr. Dash believed had “made self-protective, evasive and misleading statements” that were, however, “far short of perjury.” But Mr. Starr wanted to press on, anyway, and “authorized his prosecutors to pursue lines of inquiry delving into every aspect of the Clinton past.”
It suddenly seems worth noting that Mr. Starr and Mayor Rudolph Giuliani, the prospective Republican Senate candidate, once worked closely together in the Reagan Justice Department. Both held high-ranking positions between 1981 and 1983, with Mr. Starr serving as counselor to the Attorney General and Mr. Giuliani as Associate Attorney General, the third-ranking job in the department.
Perhaps Mr. Starr imagines that he will help his old colleague defeat the First Lady by compiling stale allegations against her in a bound volume. Whatever harm he hopes to cause her by such an ill-advised gesture, he will likely inflict worse on whatever is left of his own reputation.