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 TIME CNN/AllPolitics CNN/AllPolitics with Congressional Quarterly

How Starr sees it

Probing the prosecutor: a TIME investigation and Starr's first major print interview

By Eric Pooley and Michael Weisskopf/Washington

December 21, 1998
Web posted at: 2:55 p.m. EST (1955 GMT)

TIME magazine

One day in 1979, a young lawyer named Kenneth Starr stepped into an elevator in the Hyatt Regency hotel on Capitol Hill. A former clerk to Chief Justice Warren Burger, Starr was 33 and rising: he was helping to open a Washington office for a big California law firm. He was two years away from being named counselor to Ronald Reagan's Attorney General and four away from becoming one of the youngest judges ever to sit on the U.S. Court of Appeals. Starr had checked into the Hyatt to cram for the D.C. bar exam, but the National Governors' Association was meeting there, and the elevator was crowded with political people. Among them was a newly elected Southern Governor whom Starr couldn't help recognizing. "He was quite robustly self-confident... He had to be the youngest Governor in the country at that time...and I just remember him as being very attractive," says Starr. "There was a buzz about him in the elevator. Here was a very accomplished person with all these fabulous credentials: Georgetown and Rhodes, an Oxonian, and then Yale Law School, and here he was, you know, a very young Governor of a state that I had spent some time in, and so I had that sense of connection."

When Starr talks about Bill Clinton, a hint of envy creeps into his voice, and his words betray a lifelong preoccupation with resume, intellect and reputation. As a young man fresh out of Sam Houston High School in San Antonio, Texas, Starr spent two years at Harding College in Arkansas and eventually came to realize that he and this charismatic Clinton fellow had moved along the same track to Washington--except that Clinton was always ahead. Clinton was at Georgetown when Starr was at George Washington University; Clinton was a Senate aide when Starr was a House aide; Clinton landed a Rhodes scholarship, Starr missed a Marshall. "So there were sort of remarkable and I guess, in retrospect, noteworthy coincidences of activity," says Starr, "although he went on in a much more distinguished way."

Growing up in the South, each must have known people like the other: the golden boy for whom everything came easily and the grind who worked himself to the nub. The one who cut corners and the one who squared them. The one who never got caught and the one who never did anything worth catching.

"It must be nice to have that kind of I.Q.," Starr says wistfully. "Doing well academically...but not having to spend all that terribly much time doing it. You know the tortoise and the hare? I'm the tortoise, moving along slowly, and hopefully getting across the finish line without getting run over." Then the independent counsel chuckles, gives one of his mild, impenetrable smiles and adds a few quiet words that make it clear this tortoise-and-hare business involves more than study habits. "It is dangerous crossing the road, isn't it?"

These days the tortoise is looking a little more relaxed. He seems to have won the race, at least for the moment, while the hare is still trying to dodge his way through heavy traffic. It's Saturday, Dec. 12, and the House Judiciary Committee has just approved the fourth article of impeachment springing from Starr's investigation of Clinton. Starr acknowledges a small sense of vindication. The impeachment articles represent "a vote of confidence in the legitimacy" of his work, he says, and he feels a great deal of relief that the matter is now "the responsibility of the elected branch of government" and that his role has become "decidedly secondary in nature."

To get to this place, he had to go slow. To nail a politician as elusive as Clinton, he had to be maniacal in pursuit of the facts. To turn lowlife behavior into high crimes and keep going when a majority of the public wanted him to hang it up, he had to be not just dogged but extremely confident--many would say far too confident--of his own fairness and judgment. "A lot of prosecutors would have stopped at some point because they didn't have those qualities," says John Bates, a former Starr deputy.

Starr believes his reputation died for Clinton's sins. White House attacks, he says, left him "transmogrified." He had been a Washington wise man, a respected former federal appeals judge (he still wears those robes in his mind) who always avoided conflict and fancied himself the soul of civility and old-school judicial restraint. But now a great many people see him as the commissioner of the sex police, the instrument of a G.O.P. plot to overturn two national elections. "It's been thoroughly unpleasant, and especially difficult for my wife and children," he says. "But beyond that, I won't whine... Matters of faith are very helpful and a source of encouragement to me that life marches on. And I guess I have enough self-discipline...to preach to myself, 'Keep your hand on the plow, and keep moving forward... If you're looking backward, the plow ain't going to work. You have got to look straight ahead and be doggedly determined to just keep plowing until you get to the end of the field."

Chapter One: Style and Substance

Starr's office is just six blocks down Pennsylvania Avenue from the White House, but the views from inside the two places could not be more different. The windowless conference room where Starr and his team hashed out some of their decisions is stark and impersonal; it could be anywhere in America. An electric fan pushes stale air around the room as Starr, dressed in Saturday-casual jeans and a plaid flannel shirt, settles in for the second of three on-the-record interviews with TIME--his only wide-ranging conversations with any print publication this year. Sometimes defensive, occasionally disarming, always excruciatingly proper and polite--"bullpuckey" is as close as he comes to a curse--he is careful not to discuss subjects that remain under Judge Norma Holloway Johnson's seal. But he does offer a fresh and often startling account of his own decision-making process, one that TIME has corroborated, to the extent possible, with other sources. And for the first time, he shows how well he understands the great brawl he set off in the land between the right of privacy and the rule of law.

"Without conceding that there might be any discomfort with me whatsoever--you're not believing those polls, are you?" (he giggles nervously at the attempted joke)--"I do think that these issues cause a fairly sharp ambivalence between weighty and competing sets of values. I think I had better stay out of that debate." But since he started it, he can't help himself. "The American people tend to have a strong libertarian sense," he continues. "We are a revolutionary society, after all; we did not depart quietly and peacefully from the mother country... Part of [our] ethos is that of the rugged individualist and getting the government off the backs of the people... Great themes of individual liberty do cause people across the spectrum to take to the barricades and to say, 'We're here to fight.'"

So he understands why so many loathe him, and it bothers him that they do. "The whole thing is terrible," Starr says at one point. "You can put that on the record. This whole thing is terrible, for all of us." He knows that where he finds a criminal conspiracy to obstruct justice, millions of others find nothing more than a frantic effort to conceal an affair. "But it would have been illegitimate," he says, his soft voice growing louder, "to try to think [about] how this would be perceived at a broad public level. We don't know what the future will bring in terms of public attitudes. Will they shift, or will they continue to be guided by libertarian, anti-invasion kinds of values? It was left to us the unhappy task of ferreting out information in these arenas that are so very personal." In other words, the statute made me do it.

During his interviews with TIME, Starr's basic civility was always on display. His detractors tend to view this refined manner as gaudy camouflage for fanaticism. But Starr's elaborate politesse runs deep: it is both a key part of his self-image and a buffer against the world. He insisted that his prosecutors refer to Clinton as "the President" even as they gathered evidence to impeach him. And his response to verbal assaults (such as Clinton lawyer David Kendall's promise that if Starr questioned Clinton about embarrassing sexual details, "I will fight you to the knife") is often nothing more than a knitted brow--a defense, a rebuke, a way of reassuring himself that he's made of better stuff. Starr wants to disagree without being disagreeable. During a flag-burning case before the Supreme Court, Solicitor General Starr once tried to have a nice chat with his opponents, raggedy members of the Revolutionary Communist Party. (They wanted nothing to do with him.) In the same way, the practiced cadences of Starr's speech--each thought qualified, calibrated, modified by one or more careful subordinate clauses--is an elegant and pre-emptory shield.

When Starr took the independent counsel's job in 1994--against the advice of virtually everyone he knew--he was immediately assailed as a partisan Clinton stalker. It was an unusual position for him since he'd always enjoyed being the Democrats' favorite Republican--a lawyer trusted enough to be asked to review Senator Bob Packwood's private diaries, a conservative judge with serious credentials as a defender of the First Amendment. He had even ruled in favor of the Washington Post in a big libel suit. "[When] the attacks began," Starr says, "I started saying, 'Well, how do you respond?' And one of the things I said was, 'I will try to bring the qualities of the judge [to the investigation]...eschew political considerations and personal predilections, and [try] to be as steadily neutral as possible."

And there is some solid evidence that he meant it. Most of the charges leveled against Starr--that he colluded with Linda Tripp and the lawyers for Paula Jones to entrap Clinton, that his men mistreated Lewinsky in their long Jan. 16 session with her--turn out to have little basis in fact, according to an investigation by TIME. Starr's last known contact with the Jones team, for example, came years before he ever heard of Lewinsky; Tripp--who clearly did collude with Clinton haters--had been briefing the Jones lawyers about Lewinsky for two months before she made her approach to Starr.

Starr has also been accused of discouraging Lewinsky from contacting her lawyer and of pressing her to wear a wire to set up the President. But Starr insists there was never a plan to secretly tape Clinton. Instead, he says, it was Betty Currie who might have been taped. And many of the actions of his prosecutors that day were approved in advance by senior Justice Department officials--including the outlines of the effort to persuade Lewinsky not to call her attorney, whom Starr and his men suspected was part of the obstruction conspiracy. Starr argues that his team's moves were monitored by a Justice Department official; that man, Administration sources told TIME, was Josh Hochberg, then deputy chief of the public-integrity unit. He was there to say "watch out for this, or watch out for that," Starr says. He took copious notes, asked questions but raised no red flags. Justice Department sources confirm that Starr's office briefed the department in advance on many of its dealings with Lewinsky. Both the Justice Department's Office of Professional Responsibility and the District of Columbia Bar Association are looking into the events of Jan. 16, but in a ruling unsealed in December, Judge Johnson cleared Starr's prosecutors of White House charges that they denied Lewinsky her right to counsel.

When Starr had a chance to trap Clinton in a way that could have destroyed the President overnight, the prosecutor declined. The story, told here for the first time, involves the infamous blue dress, which Lewinsky gave Starr's office on July 29, saying it might be soiled with evidence. The dress presented prosecutors with a choice: the office could keep secret the results of its DNA analysis until after the President's testimony, or it could tip off the President before he swore his oath. Clinton knew Starr had the dress, of course, and could have surmised what the test results would show. But Starr wasn't legally bound to inform him. And if Clinton's grand jury testimony stuck to the story that he had not had sexual relations with Lewinsky and Starr then proved otherwise in a lab, the prosecutor would have a relatively clear-cut perjury case.

But Starr wouldn't set the trap. His job, he told colleagues, was to encourage Clinton to tell the truth, not catch him in a lie. When the DNA results came back, on July 31, Starr had deputy independent counsel Bob Bittman contact Kendall to request a presidential blood sample. Kendall asked if Starr's office had "a precise factual basis" for the demand--something against which to match Clinton's blood. A "substantial" one, Bittman replied. Seventeen days later, Clinton appeared before the grand jury and admitted an "inappropriate" relationship with Lewinsky. Alerting Clinton to the test results, Starr told TIME, just seemed like the "right thing to do" because it was "in everyone's interest to get to the bottom of this."

But perhaps the most convincing evidence of Starr's good intentions was the way he structured his office. Trained in appellate law--a protected world of polite debate over constitutional issues--Starr decided to apply the same set of values to the far harsher world of criminal prosecution. He says he modeled his decision-making process on "the way judges on a collegial court operate," a consensual, deliberative style that was alien to most of his prosecutors. Every afternoon at 5 o'clock when he was in Washington, he and his 30 lawyers and 10 investigators crowded around a 30-ft.-long conference table to hear the daily report and discuss strategy. Starr previewed the agenda but had Bittman run the meetings so Starr could absorb more of the discussion. For major decisions, he assigned a prosecutor to summarize facts and evaluate the pros and cons. Starr insisted on hearing opinions from everyone at the table as he searched for the majority view, a process that he says was not intended to reach "some Solomonic middle ground" but to achieve decisions free of "arbitrariness and caprice." Though Starr made the final calls, sources say, he invariably went with the majority vote.

But if the man is so dedicated to fair play and consensus, why has his investigation--which dragged bit players before grand juries, interrogated a White House aide about his media contacts, issued a subpoena for bookstore records and forced Secret Service agents to testify about the man they protect--so often seemed wild and obsessive?

Part of the answer lies in the makeup and background of Starr's handpicked team. Though Starr prides himself on having created a "microcosm" of the Justice Department, "but perhaps more elaborately fine tuned," true legal diversity eluded him. He had tough prosecutors and brilliant litigators recruited from around the country, but his Lewinsky team had few lawyers with strong criminal-defense backgrounds to provide balance, help plot the next move or weigh in on the treatment of witnesses. "Government lawyers have never had to sit in a room with somebody who is completely innocent," says a former Starr assistant, "and know the personal toll on that person and their families." Starr's ethics adviser, Watergate eminence Sam Dash, signed off on major decisions but not the nuts and bolts. (He resigned in November, calling Starr too strong an advocate for impeachment.) A female attorney was known for her sensitivity to civil liberties issues, but the attitude won her the nickname Hallmark, after the famously sentimental greeting-card company. "This isn't the United Nations," says Starr spokesman Charles Bakaly. But when the Lewinsky scandal broke, there was nobody with the sensibility to point out, for instance, that subpoenaing Lewinsky's mother might not play too well in the real world.

Chapter Two: Starr Transformed

In some ways, Starr was remade by his prey. Four years of chasing Clinton--hunting for wrongdoing in Whitewater and its tributaries, butting heads against the Clinton stonewall--changed the man. He and his lieutenants apparently became persuaded that they were dealing with a kind of ongoing criminal enterprise. The more Clinton stalled, the more Starr pushed. The more Starr pushed, the more Clinton stalled. And in the end, each drove the other to a kind of madness. It's a subject Starr's friends discuss gingerly.

"There was not a lot of confidence in the probity of the White House," says one. "There was a long experience with its not being forthcoming and truthful." Starr claims the experience didn't change him, but the evidence contradicts him, and so do many of his friends and allies. They say he became tougher, more aggressive, more willing to assume the worst about Clinton and his people. "The impact was almost unavoidable," says a Starr associate. "You're less likely to...give people the benefit of the doubt." Starr became less deferential, summoning Hillary Clinton to the grand jury in 1996 rather than questioning her at the White House. He relied on hard-nosed prosecutors like Bittman, Jackie Bennett Jr. and Michael Emmick. He became so intense in his pursuit that in early 1997, he authorized his agents to question Arkansas state troopers about Clinton confidants, including alleged paramours from a decade before, who might have picked up scraps about shady business deals. Starr was so sure of his righteousness that he became outraged when the story broke and people had the temerity to question his motives. For the White House, it provided a predicate offense--the first piece of evidence used to paint Starr as a sex-obsessed keyhole peeper.

The issue of Starr's perspective is central since Americans rely on prosecutors--and especially independent counsels, who wield virtually unchecked power--to exercise discretion. When Tripp showed up to spill the beans about Monica and Bill, another prosecutor--one who was more streetwise, one who hadn't been up against Clinton for so long--might have shown her the door. But Starr saw a conspiracy to obstruct justice unfolding before his very eyes. He went to the Justice Department seeking authorization to expand his investigation, and failed to remind the officials that he'd had contact years before with lawyers for Paula Jones, a fact that could have led Janet Reno to send the case elsewhere.

After an additional eight months of bitter combat--legal battles won and p.r. battles lost, charges and countercharges of leaking and lying--it was time for Starr to send his referral to Congress. When it turned out to contain graphic sexual details with no direct bearing on the perjury question, the report struck many as biased, intended to inflame opinion. Starr's reputation was sealed.

Starr says he wanted to leave out those X-rated details, but a majority of his lawyers disagreed and, disastrously, he changed his mind. "We recognized full well how unpleasant and off-putting" the details were, he told TIME. (This is a man who once clucked disapprovingly at an old friend just for telling a Monica joke.) He had his lawyers write bowdlerized versions but felt they didn't make the case. And his prosecutors argued that even the details that fell outside the Jones case's definition of sex should be included, because they buttressed Lewinsky's credibility. In the end Starr relented. He instructed them to stash the naughtiest bits into the footnotes--as if that made a difference. He says he didn't know Congress would release everything and that he never anticipated being cast as Puritan pornographer. "I don't think my crystal ball was working especially well," he sighs. "It so frequently doesn't work well."

Starr also conceded for the first time that the report should have quoted Lewinsky directly, instead of paraphrasing her, when she said, "No one ever asked me to lie." He told TIME, "It really cannot fairly be said we were trying to hide that, but it did give [the other side] a nice debating point." When asked whether he would have found room to quote Lewinsky directly had she admitted that she was asked to lie, he said, "That's a good question. I think that's probably a fair question."

Starr decided not to take part in--or even observe--grand jury testimony or interviews, and that may have been another mistake. The idea flowed from his conception of himself as a judicious figure remaining above the fray. Starr would be briefed daily, he would analyze testimony, debate policy and plan moves, but he would not be in the room when key witnesses told their stories. "It was my view that I should be relying upon the professional judgments of experienced agency prosecutors, and then the reaction of grand jurors, [to determine] Is this person worthy of belief?" says Starr.

But his critics--and even some longtime friends in the legal community--believe the decision, coupled with his inexperience, allowed the investigation to be hijacked by aggressive deputies out to bag presidential prey. "Starr's Cowboys," as they became known, were accused of bullying witnesses, but Starr argues that his system kept them in line. "Outside commentators and pundits may say, 'Gee, that seems as if the prosecutor's office is being rather energetic.' Others can judge whether it was overly energetic, [but] we did create a decision-making mechanism that limited the ability of an individual prosecutor or agent to make a significant decision."

Because he did not observe the questioning of witnesses, Starr couldn't give eyewitness answers when challenged about the treatment of witnesses. His apparent aloofness opened him to yet another avenue of attack from Clinton's lawyers, and it raises one loud question: Wasn't he at least tempted to see Lewinsky and get a firsthand sense of her testimony? "Yes! I was!" he replies, his voice rising. So did he rethink the policy? He seems startled by the suggestion. "Rethink it? I was always open to a suggestion that it would be a good thing, or it might be a good thing." But that suggestion never came. His policy was put to the test in July, when Lewinsky was questioned by his agents in New York City--the breakthrough moment that led to her immunity deal. Starr spent the night before the interview in the apartment where she was to be questioned. But, he says, "I structured my departure so that she would not see me. I did not want it to be in the slightest degree more awkward than it had to be."

Starr saw the decision as a testament to his civility; Kendall used it as evidence he was out of touch with his probe. Time and again, Starr's confidence in his own moral rectitude has blinded him to, at the very least, the appearance of bias and conflict of interest. As an old friend and adviser says, "Ken suffers from judicial ethics, a view judges have that they'll do it right and be perceived as doing it right. He doesn't realize that part of the issue is perception."

In 1994, Starr saw his decision to continue a full-time law practice (even defending tobacco interests) while investigating Clinton to be a sign of his independence, because he wouldn't be beholden to the job. Others saw it as evidence of his lack of high seriousness and of his conflicted motives. In 1997, when he decided to quit the probe and take a position at Pepperdine University, he knew the institution was funded in part by the Clinton-bashing billionaire Richard Mellon Scaife, who for years has been paying for right-wing fishing trips into Clinton's past. But again Starr didn't see the conflict. In fact, he saw Scaife as one of his own harshest critics because Scaife's minions had attacked a Starr report concluding that Vince Foster killed himself. "What the name Richard Mellon Scaife meant to me was, here was someone who had been financing some of our harshest critiques," says Starr. "This will tend to show my less than fastidiously attentive political antennae."

Starr admits to being a political innocent. ("Clearly. Absolutely. How do I measure the ways?") He admits to being "a slow learner," to committing "boners and goofs," to failing to realize that "even though one is carrying on a legal function, one's activities are going to be viewed through the prism of...appearances and politics." But underlying these admissions is a sense that, as his mentor, Attorney General William French Smith, used to say when Starr was Smith's counselor in the Reagan Justice Department, Washington is "not merits-oriented enough. He would say, 'You've got to get past this huge layer of appearances, then a huge layer of politics. And then finally, perhaps as a distant third, you will get to the merits of the issue." And so Starr's remarks about p.r. ineptitude appear to be both a defense--the errors were about surfaces, he insists, not substance--and a form of vanity, as if he operates on a higher plane and can't be blamed for losing a war of perceptions with Clinton.

Chapter Three: The Root of It

Starr's probe of the president has been so bruising that it seems fair to ask what kept him going. Averse to conflict, he has slogged through the most disagreeable year imaginable. Why take the job? Why put up with the abuse? Many have assumed he did so because he was on a moral crusade, or carrying water for the Republican Party. But when it comes to Starr, nothing is quite so simple.

Some who know him point to an odd combination of ambition and naivete as fueling his decision to become independent counsel. While serving as George Bush's Solicitor General in 1990, Starr made the short list for nomination to the Supreme Court but was passed over. After he left the Administration and returned to private practice, he shelved his dreams of becoming a Justice, ran the Washington office of his new firm, Kirkland & Ellis, but seems to have been looking for a way to become a player again. He toyed with the idea of politics, considering and then rejecting a run against Oliver North in the 1994 Republican primary for Virginia Senator because he didn't have anywhere near enough chits to cash in among the state's pols and was considered too soft, untested--and moderate--to compete.

Then he was offered the independent counsel's job. His closest friends thought him crazy to consider it. "Starr wasn't under any illusion that this would make him popular," said William Kelley, a former Starr law clerk who later became a consultant in the Lewinsky probe. So why accept the post? "Because he was asked," says deputy Bittman. Duty, sacrifice, public service--these were values rooted in Starr's early years as the son of a Fundamentalist preacher in South Texas. From the Scriptures, he says, he learned the value of serving others, of raising the soul by diminishing the self. In college his studies in political science drew a bridge to the real world, where Starr came to know the "importance of institutions" and the role of law in upholding them.

Much has been made of the premium he places on truth as the bedrock of the legal system. He was mocked for sounding like Moses last April, when he declared that "there's no room for white lies" in court. Clinton's enemies see Starr's fealty to the facts as a handy weapon, but to Starr himself, the truth seems to be something more basic, less tactical. It's an attitude that was shaped, he says, by a traumatic moment in preadolescence.

As a sixth-grader in Floresville, Texas, Starr was moving down the lunch line in his primary school cafeteria when a teacher pointed at him and yelled, "You didn't pay!" All eyes turned to Kenneth. "It lasted probably for three seconds, but it was so horrifying that here I would be accused, wrongly, of trying to sneak through, and not paying, literally, 25[cents]," Starr recalls. "It was the public humiliation to be wrongly accused of this very petty offense." The incident, he says, taught him that lies are weapons, and that the truth is one of life's "great virtues." And while "it might be more convenient to do something treacherous or dishonest," he says, "don't do it... The truth is way up there in that pantheon of important things that must be well served."

When he likened himself to the tortoise, Starr may have been revealing more about himself than his steady style. This tortoise has traveled so far, and taken so many hits along the way, that his shell is hardened and scarred. The toll of this year displays itself in small, self-lacerating asides, such as his remark about how the Justice Department document appointing him as independent counsel "will hang in infamy." But at other times, Starr seems to lack perspective on himself, either missing or willfully ignoring his own mental connections. He loved Saving Private Ryan, and he refers to Jan. 16, when his agents first intercepted Lewinsky, as "D-day," yet he says he's never thought of any parallels between Ryan's platoon and his loyal band. He's also a Churchill buff--his middle name is Winston--but he waves off any comparison to the British leader so famously rejected by his countrymen and so thoroughly vindicated by history. "I try to keep my feet very much on the ground and not to draw any wild and grandiose comparisons," he says. But a few seconds later, he's drawing this one: "I love the Lincoln-Douglas debates... [But] had Mr. Gallup been running around the countryside [taking polls], he would have been guiding Mr. Lincoln not to give the House Divided speech. It was not as well received by as much of the populace as was necessary in order to be elected to the U.S. Senate. But he gave it... Why was it the right thing to do? Because it was grounded in a very fundamental sense of right and wrong, which was in the fullness of time broadly shared by at least a substantial part of the American electorate. And then, of course, there's the stuff of marble monuments to remind us that there is right and there is wrong and that a nation cannot endure based on wrong, which was his fundamental message." Then he seems to bring the riff back to Clinton. "And this is wrong. So."

He snaps out of it, perhaps realizing that he's just made the kind of comparison he had boasted about avoiding. He savors these small imaginative flights. In trying to explain himself in the past year, he has invoked such figures as Joe Friday, Atticus Finch, the Lone Ranger, George Washington and Christ in the garden at Gethsemane on the night before the Crucifixion ("Let this cup passeth from me"). The roster suggests that Starr needs to place himself in the company of heroes and saviors. "I can't be the judge in my own case," he says, and maybe it's true. But like Bill Clinton, he still dreams of being found not guilty.


MORE TIME STORIES:

Cover Date: December 28, 1998

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