Probing the Probers in Search of Probity

Certainly Kenneth Starr will stand out in the history of independent counsels, festooned with such novelties as his landmark subpoena to a bookstore, his probe of White House press contacts and his rejection by a unanimous Supreme Court when he pleaded for an immediate review of executive privilege. Just the other day, almost unnoticed by the mainstream press, he laid claim to still another distinction.

After weeks of dithering, Mr. Starr became the first independent counsel to appoint another independent counsel to investigate his own investigation.

Actually, to call Michael Shaheen an “independent counsel” is technically incorrect, although it lends an appropriate aura of absurdity to this latest Whitewater episode. He was not appointed under the Independent Counsel Act, and will be known by some other title. But he was appointed for the same reason as an independent counsel, and will perform much the same function.

His chief assignment is to uncover the truth about alleged payments to Mr. Starr’s key Whitewater witness, David Hale. And he has been asked to do so because Mr. Starr, with myriad conflicts of interest, cannot credibly do the job himself.

For those who need reminding, Mr. Hale is the former Little Rock, Ark., municipal judge who defrauded the U.S. Government of more than $2 million. As part of his 1993 plea agreement with Mr. Starr, he accused President Bill Clinton of pressuring him to make an illicit loan of $300,000 to the Whitewater project. The President has denied Mr. Hale’s allegation under oath.

Mr. Shaheen’s arrival was precipitated by recent charges that Mr. Hale received cash gifts from Parker Dozhier, a Hot Springs, Ark. bait shop owner who worked for The American Spectator ‘s “Arkansas Project”–the get-Clinton apparatus funded by conservative billionaire Richard Mellon Scaife. Owing to Mr. Starr’s connection with Mr. Scaife, whose foundations funded a Pepperdine University post that was offered to the independent counsel, the Hale payoff charges had to be dealt with by someone outside the Office of Independent Counsel. At least, that’s what Justice Department officials suggested, and Mr. Starr possessed enough wisdom and probity to take the hint.

After all, Mr. Starr already has announced one ill-advised investigation of his own office. Remember when he promised to deal with leaks of grand jury material a few months ago? So far, nothing has come of that. And Mr. Starr probably thought better of laying himself open to ridicule in the Hale matter with another self-examination.

With Mr. Shaheen’s appointment, however, the independent counsel may expose himself and his office to something more potent than wisecracks. If Mr. Shaheen can substantiate the payments to Mr. Hale–attested to by Mr. Dozhier’s ex-girlfriend and her son–then what little remains of the Whitewater case would be irretrievably tainted. So might the convictions he won with Mr. Hale’s testimony against the late James McDougal, Susan McDougal and former Arkansas governor Jim Guy Tucker.

It would be difficult to find a prosecutor more qualified to investigate the behavior of other prosecutors than Mr. Shaheen, who headed the Justice Department’s Office of Professional Responsibility from its inception in the mid-1970’s until he retired last December. And those who know Mr. Shaheen believe he would not have accepted the job if he lacked the authority to conduct a wide-ranging, thorough and completely independent ethics investigation.

“Shaheen is no one to be trifled with,” said a former high-ranking Justice Department official who knows him well. “It was really important that Mike secure a wider charter than the Hale problem, and he has. He will look at Starr’s conduct in other matters relating to professionalism in the investigation of Whitewater … Mike would never accept a job where he didn’t have substantial powers to investigate what needed to be investigated.” Just how widely Mr. Shaheen can range from the allegations against Mr. Hale is not clear. Neither the Justice Department nor the Office of Independent Counsel would comment on his hiring, and Mr. Shaheen himself is notoriously wary of publicity. “It’s a potentially major story,” said the former Justice official, “but it’s better for people to have low expectations at the outset.”

Despite his strong reputation for integrity, there may be questions about his impartiality. While he was still at Justice, Mr. Shaheen looked into possible F.B.I. abuses in the so-called “Travelgate” matter. Back then, he excoriated Clinton Administration officials for withholding “relevant notes” written by deputy White House counsel Vincent Foster concerning the abrupt firing of seven employees in the White House Travel Office. In a 1995 memo uncovered by The Weekly Standard , he angrily noted “the lack of cooperation and candor we received from the White House throughout our inquiry.”

But no one is totally impartial, especially in the current polarized political atmosphere. And with his record of skepticism toward the White House, Mr. Shaheen won’t easily be dismissed as a Clinton partisan if he does find evidence of wrongdoing in the Arkansas Project–or in the Office of Independent Counsel.

Probing the Probers in Search of Probity