Copyright (c) 1996, The Nation Company, L.P. All rights reserved. Electronic redistribution for non-profit purposes is permitted, provided this notice is attached in its entirety. Unauthorized, for-profit redistribution is prohibited. For further information regarding reprinting and syndication, please call The Nation at (212) 242-8400, ext. 213 or send e-mail to Peter Rothberg.

Compromised Counsel

Whitewater independent counsel Kenneth Starr has operated with near impunity in his twenty-month tenure, despite questions of impropriety over his extremely partisan past, the circumstances of his appointment and his insistence on remaining in practice at his high-profile law firm, Kirkland & Ellis. Even when this magazine raised more troubling questions on March 18 -- a special report by Joe Conason and Murray Waas turned up documents showing that Starr was actively investigating officials of the Resolution Trust Corporation who were at the same time involved in an action against his law firm -- Starr at first deemed them unworthy of response. He later argued that the matter had been reviewed by his ethics adviser, Samuel Dash, who apprised him that he was not in violation of the law. And by and large the major media were initially disposed to accept Dash's $3,200-a-week (his fee) opinion at face value.

Yet as we went to press, Dash was forced to defend the mounting sum of his employer's actions, in part because of the cases Starr has been handling (most notably one on the side of big tobacco), and Dash began backpedaling. He conceded in the April 22 New Yorker that while Starr may be "proper" in his conduct as strictly construed, "it does have an odor to it." Even The New York Times found itself calling for Starr's resignation, saying voters are "bound to be confused about the integrity of Mr. Starr's decision on whether to prosecute the Clintons and their close associates."

Now we are able to report that significant quarters of the legal profession, too, in looking at Starr's diverse interests, find they raise profound questions and compromise his position. "Anyone whose work as a prosecutor involves the possibility of going after the President ought to be squeaky clean," says Charles Wolfram, professor of legal ethics at Cornell University. "Unfortunately, that is not true of Ken Starr." Geoffrey Hazard of the University of Pennsylvania Law School, one of the most temperamentally conservative of legal ethicists, believes Starr's continued involvement with anti-Clinton enterprises like the far-right Bradley Foundation is not itself a violation of the legal profession's rules but does raise questions of Starr's "prudence" and whether "he should ever have taken the job." More gravely, Hazard believes there is "ground for thinking there might be a conflict" in the R.T.C. case reported by Conason and Waas, since Whitewater prosecutor Starr "had the power to bring tremendous pressure" on the very officials suing Kirkland & Ellis. Hazard declares that it would unquestionably be a breach of law if Starr knew about but did not reveal the R.T.C. case to the panel of U.S. District Court judges who hired him.

The most thorough critique of Starr's role comes from Monroe Freedman, professor and former dean of Hofstra University Law School and author of a standard textbook on legal ethics. (No shill for the White House, Freedman testified against the Supreme Court nomination of Stephen Breyer on ethics grounds.) The Starr case disturbs him deeply. "Ken Starr is helping give a bad name to independent counsels," Freedman says. "At the very least there is the clear appearance that Starr is not using his independent and objective judgment as prosecutor."

Attorney General Janet Reno has the legal authority to fire Judge Starr for cause, but that would risk a political firestorm. On the April 14 broadcast of Meet the Press, she deftly turned a series of questions back onto the absent prosecutor, citing "issues Mr. Starr must address." Starr himself, while dismissing his critics in a speech, has yet to answer critical questions.

When, precisely, did Starr learn of the R.T.C. action against his law firm? Did he inform the three-judge panel that appointed him of potential conflict, since the R.T.C. figures so heavily in Whitewater? When did he approach his own ethics adviser about the matter -- and if he did so after several months' delay, as may be the case, why? If he was careful to insulate himself at Kirkland & Ellis, where is the documentation? For their part, did those who appointed Starr know of the host of apparent conflicts now reported so widely?

Penn's Geoffrey Hazard suggests Starr's position will continue to erode unless he discloses whatever information he gave about the R.T.C. case to the judges who hired him, and all reports and memos by ethics adviser Dash on the same question. We are already on record calling for Starr's resignation -- not for the sake of Bill Clinton but to protect the crucial institution of independent counsels. Even ignoring the vexing R.T.C. issues raised by this magazine, Starr's other entanglements have reached Gordian proportions, leaving justice in bad need of a sword.


HOME
This Week | Subscribe | About The Nation | Alert | Forums
Audio | Archives | Search | Hot List | Marketspace | Survey

webmanager@TheNation.com