THE APPOINTMENT OF Kenneth Starr as independent counsel to investigate Bill and Hillary Clinton's role in the looting and collapse of Jim and Susan McDougal's Little Rock S&L, Madison Guaranty--the real subject of the scandal that the press has universally mislabeled Whitewater--may have been the First Couple's biggest break. Starr's utter lack of prosecutorial experience has led him to make a series of errors that have nicely benefited the Clintons.
First, Starr spread himself too thin, and failed to concentrate his resources on the massive evidence of a coverup of White House attempts to intervene in the federal bank regulators' probe of the Madison Guaranty failure. This evidence was uncovered by congressional inquiries in 1994, when the Democrats still controlled the Hill. And though a raft of administration witnesses claimed amnesia and contradicted their own diaries and memoranda, it was damaging enough to force the resignation of the entire top leadership of the Treasury Department and of White House counsel Bernie Nussbaum.
Starr's second mistake was part-timing his independent-counsel job and maintaining his lucrative corporate law practice on the side (representing, among others, the tobacco industry). This left him open to charges of conflict of interest in a way that no politically savvy prosecutor about to joust in the public arena with a president would ever have done.
Finally, Starr's bizarre decisions to first accept, then reject, a Pepperdine professorship endowed by nutty conservative philanthropist Richard Mellon Scaife smack in the middle of his Clinton investigation drew wide public attention to Starr's antecedents in the Republican right. This softened up public opinion to receive as literal truth Hillary's carefully scripted charge that the allegations of perjury and obstruction of justice in the current presidential sexcapade were produced by a "vast right-wing conspiracy" (a charge even the liberal New York Times called "demagogic" and "fictional").
Now Starr has put his foot in it again in a way that may have damaged, if not destroyed, his case. Last week Starr went before federal judge Susan Webber Wright, who is presiding over Paula Jones's sexual-harassment lawsuit, to ask that the quizzing of witnesses and the document search by Jones's lawyers be halted until his own investigation of the Monica Lewinsky affair was completed. Wright has nearly as many political ties to the Clintons as Starr does to the GOP right, and she showed her colors when she ruled in 1996 that Clinton could not be tried in a civil suit until he left office (a decision so violative of the constitutional principle of equality before the law that it was unanimously overturned by the Supreme Court).
This time, Wright took the opening stupidly handed her by Starr to manufacture a much broader ruling excluding all Lewinsky-related matters as "not important" for the Jones lawsuit. Thus were thrown out of the Jones case both Lewinsky's affidavit and Clinton's deposition denying a sexual liaison. A Supreme Court ruling in Dunne v. U.S. clearly says there is no perjury if that which is sworn to is not "material" to the case at hand (the Jones case in this instance). So, not only can Lewinsky's lawyer now argue that his client committed no crime--thus eliminating Starr's best means to force Lewinsky to testify--but so can the president's counsel.
Although the latest polls show that a majority of Americans now think that Lewinsky and Clinton had an affair, they also show a belief that Clinton should resign only if it can be proven in court that he lied about it. And without Lewinsky's cooperative testimony, that is a tough case to make in purely legal terms.
Even subtracting the significant post-State of the Union bounce in the president's approval rating--which, history tells us, will gradually fade away--the polls suggest that the president still has roughly half the country with him. And Starr continues to behave like a booby: Hauling drug czar Barry McCaffrey's press secretary before the grand jury for privately expressed political speech (specifically, calling Democratic friends in Maryland to urge a legal probe of Linda Tripp's taping of Lewinsky) is an outrageous violation of First Amendment rights. No wonder Starr's negatives are double his positives in the polls. If Slick Willy gets away with it again this time, it will be thanks to the nincompoopery of Ken Starr.
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