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Starr Power

By James L. Hirsen, J.D., Ph.D.

Recently, Independent Counsel Kenneth Starr has received a barrage of criticism from just about every segment of the media. Attacks have been leveled against Judge Starr ranging from the scope of his authority to the nature of his techniques. Last Friday, William Ginsburg, Monica Lewinsky's lawyer, said that his client was being "squeezed'" by Starr and his subordinates. Then on Saturday Clinton's attorney, Robert Bennett, suggested that Starr was pressuring Lewinsky to change her story because the federal prosecutor is "out to get Clinton." By Sunday, the White House apologists were out in full force, attacking Starr from every angle, including hurling some carefully constructed military euphemisms. Paul Begala accused Starr of using a prosecutorial "Uzi", while
presidential adviser, Rahm Emanuel, said Starr has been "walking around with a loaded subpoena" for more than three years. Yet there are several reasons why Starr's actions should be considered both correct and proper under these sensitive and profoundly serious circumstances.

On repeated occasions, for administrative and economic convenience, the original 1994 mandate to investigate the Whitewater land deal in Arkansas has legally been extended. This placed the White House Travel Office firings and the alleged misuse of FBI files by White House personnel squarely within Starr's jurisdiction.

When Starr recently sought to broaden his probe, he rightly justified this new investigation by pointing out that his office was already in the process of inquiring into allegations involving presidential friend and confidante, Vernon Jordan. Starr was attempting to determine whether Jordan tried to buy the silence of Whitewater figure Webster L. Hubbell by lining up several consulting jobs for him. Following the course of conduct that any competent prosecutor would, an FBI investigation followed. This yielded information that Jordan had allegedly urged Monica Lewinsky to lie by denying that she had been involved in a sexual affair with Clinton or had been assisted by Jordan in finding work. This new information is closely related to the earlier Whitewater investigation of Jordan.

However, the prudent approach of Starr did not end there. As an additional measure of caution, Starr sought and received judicial permission from a three-judge panel to expand his probe in order to follow up on the newly acquired information. This approval to proceed was warranted due to the previously stated connection between Jordan and Hubbell.

Authorization by Attorney General Janet Reno and the Justice Department was not really required. A 1996 court ruling allows independent counsels to bypass the Justice Department when seeking expansions into areas that are considered to be related. Still, Starr had the foresight to realize that Reno's approval would help to insulate him from the inevitable, political criticism that would most certainly follow.

The investigation into this delicate matter was conducted by a designated group of FBI agents who were part of the expanded Whitewater investigation. Initially the Office of the Independent Counsel had as many as fifty agents assigned to the investigation. At the time of inquiry into the Jordan/Lewinsky matter, the number of agents had decreased to seven. These seven agents had been working with Starr for years and fully understood the purposes of his investigative mandate. To prevent conflicts of interest, there must be a firewall between the Justice Department and the FBI on one hand, and Starr's independent investigation on the other.

The discussions taking place between Ginsburg and Starr have been filled with the typical posturing for which criminal defense attorneys are noted. Immunity occurs when a prosecutor agrees to furnish a person protection from criminal charges in return for meaningful assistance. Ginsburg appropriately is seeking the highest level of protection from prosecution that he can obtain for his client. Likewise, Starr is attempting to secure the strongest possible commitment that the testimony in question will be valuable to his cause. At this point, Starr's currency is immunity.

Negotiations may turn on whether or not Lewinsky will receive limited, or use immunity, as opposed to absolute, or transactional immunity. Limited immunity affords protection to the witness from the use of the furnished testimony in a future prosecution. A witness may still be prosecuted using information not obtained from the immunized testimony. Absolute immunity grants a witness complete protection from prosecution for offenses related to the compelled testimony.

A crisis sometimes results in frenzied counter charges being launched at the first available target. So far, Starr seems to be the recipient of the current round of sundry attacks. However, the Independent Counsel appears to be operating from a worthwhile presumption-that the President of the United States, like every other citizen, is subject to the rule of law.

Copyright © 1999 -
James L. Hirsen, J.D., Ph.D.

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