Give It Up, Ken: Law’s Against You

The campaign bookkeeping for next year’s New York Senate race

is already looking 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. 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) from the

independent counsel to the candidate they run against her. It is hard to find

any other real justification for Mr. Starr’s ongoing 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 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 Michigan Senator’s letter then reminds Mr. Starr

that in the course of renewing the Independent Counsel Act, 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.

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.” That effort ventured far beyond the independent

counsel’s authorized responsibilities and veered into partisan politics. And

now Mr. Starr and his remaining aides continue to lurk around, waiting to drop

their bombshell on the New York Senate campaign.

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.