Analysis: Starr Faced Setbacks In June, Looks For Turnaround In July
By Kathleen Hayden
WASHINGTON (AllPolitics, July 3) -- Ken Starr has had better weeks. The dismissal Wednesday of his tax evasion charges against presidential pal Webster Hubbell was just the latest in a string of high profile setbacks for the independent counsel and his prosecutors .
However, Starr may still be in the legal win-column, as recent defeats come on the heels of a previous wave of victories. And some critical rulings on several ongoing disputes, including the testimony of presidential confidant Bruce Lindsey and Secret Service employees, are expected over the next month.
But even if his legal probes into Whitewater, the White House Travel Office firings and, of course, the Monica Lewinsky matter do not suffer badly, Starr's efforts to rehabilitate his image have been made all the more difficult. For an unpopular prosecutor investigating a popular president the greatest defense is to have the law on your side: During June, Starr could not make that claim.
While it is still unclear what implications the month's losses could have on the overall investigaton, the short-term legal implications may be serious.
The Supreme Court disappointed Starr twice in June. First, the justices refused to expedite hearings on the Lindsey and Secret Service testimony disputes. Their decision likely delays the final resolution of both cases because the appeals are expected to end up back with the high court, which does not resume business until October.
And then in a ruling last week, the court rejected the independent counsel's request for access to notes taken by the lawyer of late White House deputy counsel Vince Foster days before Foster's 1993 suicide.
While a defeat from the highest court in the land can leave any lawyer red-faced, the justices' decision also leaves Starr noteless.
In court filings, he had made clear how important the Foster documents were to his probe of first lady Hillary Rodham Clinton's role in the travel office firings. Without those notes, Starr will have to start digging again for the information Foster took to the grave.
On the same day as the Foster ruling, Whitewater figure Susan McDougal was released early from prison, with her Whitewater-related sentence reduced to time served.
Starr wanted to keep her in prison to force her into cooperating with his investigation of the Clintons. Though McDougal's continued refusal to testify throughout her 18-month contempt sentence left the independent counsel little hope she would turn on the Clintons, any leverage Starr might have held over her evaporated when McDougal became a free woman.
The dismissal of the Hubbell charges was another strategic loss of a potential witness. The former Justice Department official and law partner of Mrs. Clinton had accused Starr of filing the indictment to pressure Hubbell into falsely incriminating the Clintons. Any such pressure is now also gone.
Of all the cases though, the Hubbell dismissal is the most stinging blow because U.S. District Judge James Robertson's decision was a judicial slap on the wrist for the legal tactics of Starr's office, rather than a commentary on the merits of the case.
During the hearing on the motion to dismiss, Robertson at one point characterized the prosecutor's legal reasoning on Fifth Amendment issues as "scary." Three days later, the judge issued an opinion rebuking the independent counsel for overstepping his authority with a "quintessential fishing trip."
The good news for Starr is that previous to last month's setbacks, he was doing pretty well.
Importantly, Starr has fared particularly well with the judge overseeing his Washington grand jury.
U.S. District Judge Norma Holloway Johnson has routinely sided with Starr, ruling against President Bill Clinton's claim of executive privilege, the Secret Service's claim of a "protective function privilege" and the claim by former attorney for Lewinsky, Bill Ginsburg, that an immunity agreement for the former White House intern had been reached.
But the legal defeats could damage Starr most in the all-important court of public opinion. In the spin war with the White House, Starr has been trying to battle his increasingly negative image as a prosecutor out of control who is out to get the president.
The latest CNN/TIME poll released Thursday indicates that effort is failing. The survey shows that the number of Americans with unfavorable impressions of Starr has grown from 42 percent in March to 51 percent in June. And only 31 percent polled feel that Starr has acted responsibly during the probe.
The public's opinion of Starr will factor into Congress' consideration of any report the independent counsel sends up to Capitol Hill. And it is the Congress who will be Clinton's final prosecutor and jury.
The string of setbacks could also leave Starr more vulnerable in his ongoing immunity negotiations with Lewinsky's new, and more Washington-savvy, lawyers. Attorneys Plato Cacheris and Jacob Stein may now be less willing to give into the independent counsel's desire for specific admissions and guilty pleas in exchange for immunity.
But the grand jury is still out on Starr and Lewinsky. Linda Tripp's first appearance before the Washington based panel turned up the heat on the Lewinsky team and the appeals court is still pondering the Lindsey and Secret Service privilege claims. Starr can only hope that July of 1998 does more to turn the tide of public opinion and legal advantage against the president then July of 1997. Remember those Senate campaign finance hearings?