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Has Starr Gone Too Far?

The three-year, $30 million probe of a small-time Arkansas land deal has taken some troubling turns

By Michael Duffy and Viveca Novak

TIME magazine

(TIME, July 7) -- The longer Ken Starr chases Bill Clinton, the more the independent counsel comes to resemble his quarry. Like the President, Starr is developing a tendency to get a little momentum going, then do something to trip himself up. Last February, for instance, he told a federal judge that he had received important new information from the Clintons' former business partner Jim McDougal on a key portion of the investigation. Nine days later, Starr announced that he was abandoning the Whitewater probe to become a California law-school dean. (A chorus of jeers forced him to reconsider.) And in a major victory last week, he won the Supreme Court's tacit approval to go rifling through the notes of White House lawyers--then was again upended by his own poor judgment. The embarrassment came when the Washington Post reported that Starr investigators seemed to have strayed from the probe's central mission by questioning Arkansas state troopers about women with whom Clinton may have had extramarital affairs when he was Governor. The investigators also tracked down some of the alleged girlfriends to interview them directly.

For a prosecutor coming off a Supreme Court victory, this was like being blasted with a Super Soaker while strolling in his best suit. Starr immediately denied that he was probing Clinton's personal life and defended his use of "well-accepted law-enforcement methods" to identify witnesses who may have been close enough to Clinton to know whether he's been truthful in his sworn accounts to Starr. But it was hard to square that rationale with some of the questions the troopers say Starr's agents were asking, such as whether one woman had borne Clinton's child--and whether the child resembled Clinton. In a bout of Clintonesque damage control, a source close to Starr told TIME that the interview notes "contain no reference" to such questions and that the agents "have no recollection" of asking them.

The President was understandably silent about all this, but his surrogates treated the news like a hanging curve ball. "A salacious witch-hunt," cried former White House counsels Abner Mikva and Jack Quinn, demanding that Starr either abandon this avenue of inquiry or resign. Pumped with rage and delight, adviser James Carville recited a litany of Whitewater inquiries: "The RTC report, the FDIC report, the Gonzales hearings, the Leach hearings, the D'Amato hearings, the Fiske special prosecutorship, the Starr special prosecutorship--and you know where we are? Into some troopers trying to talk to some women. [The investigation] is in the ditch because that's where it started."

Even to some defenders, Starr is beginning to look like a detective who has lost the thread of his case. Named in 1994 to investigate the Clintons' Whitewater land investment with Jim and Susan McDougal--a mandate that was broadened to include Vince Foster's suicide, the White House travel-office firings, the Administration's possible misuse of FBI files and several other matters--Starr has obtained 12 convictions and guilty pleas. But nearly three years and more than $30 million later, the American public is little closer to understanding the circumstances and import of the original land deals. Questions about whether the Clintons and their loyalists lied or otherwise covered up the truth remain unresolved. Starr hasn't even delivered his long-overdue report on Foster's death, though it's likely to be issued within two weeks. The exhaustive report was delayed when Starr's team grew concerned over allegations of sloppy work at the FBI lab. The Foster investigation wasn't one of the cases compromised, but Starr's team took extra pains in an effort to avoid attacks from conspiracy theorists who still don't believe Foster killed himself.

Sources close to Starr told TIME that the counsel's foray into Clinton's romantic life was driven partly by frustration and partly by a fastidious nature that wants to run down every lead. Decision time on prosecutions is near, they say, and with some sources of information apparently closed off, Starr is doing a final casting of the net. Susan McDougal has sat behind bars since last fall for refusing to cooperate, and former Justice Department official Webster Hubbell, who has already done hard time, says he won't help Starr further. In searching for other confidants, Starr hopes to establish whether Clinton told the truth when he testified that he had no role in an illegal $300,000 loan to Susan McDougal.

Some of the questions posed to the troopers--such as whether they witnessed Clinton having sex--were meant to test the troopers' credibility, Starr associates say. There's ample reason to doubt the officers. Two of the troopers admitted lying about a car accident. And in an affidavit obtained by TIME, trooper Ronald Anderson says three of his colleagues were given a contract by Arkansas lawyer Cliff Jackson guaranteeing them jobs paying $100,000 annually for seven years in return for making allegations in December 1993 that they arranged and covered up Clinton dalliances. Jackson, a longtime Clinton opponent, denies the story.

Equally troubling is another set of questions allegedly posed by Starr's staff this spring--to Bob Hattoy, who once worked in the Clinton White House and is now an official at Interior. Hattoy told George magazine that Starr's agents asked if it had been his job "to place homosexuals in the highest levels of government." Starr's office declined to comment.

A legitimate line of inquiry opened last week when the Supreme Court declined to review a lower-court decision granting Starr the right to see notes that White House lawyers took of their conversations with Hillary Rodham Clinton. No lawyer-client privilege exists between government attorneys and officials, the court said, so the White House gave Starr the notes he sought: five pages about the First Lady's account of her actions after Foster's suicide, a dozen pages scribbled by lawyer Jane Sherburne during breaks in Hillary's January 1996 grand jury appearance. Starr is looking for evidence that the First Lady lied in sworn statements, especially about the Foster matter or the disappearance and reappearance of her Rose Law Firm billing records. The White House says the notes are not incriminating, and most legal observers doubt the independent counsel will bring perjury charges against Hillary Clinton.

What's left for Starr? He continues his probe of Hubbell, who left the Justice Department en route to jail in 1994 but detoured into work for a host of companies friendly to the Democratic Party. Starr has just hired three seasoned prosecutors, in part because he needs the benefit of their judgment as the probe wraps up. His court victory this week could be viewed as a renewed fishing license--allowing him to subpoena notes and depose White House lawyers--but that would be a mistake. After last week, even Starr must know that time is running out.

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