Tales from the Inquisition The Prosecutor

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The current presidential crisis began not with the arrival of young Monica Lewinsky at the White House but with a December 1993 article in The American Spectator purporting to reveal Bill Clinton's sexual behavior in Arkansas. Among the episodes it described was the procurement of a young woman named Paula by Arkansas state troopers. When Paula Jones, a former Arkansas state employee and an aspiring actress, read the article, she assumed that "Paula" referred to her. Jones did not immediately sue the Spectator for defamation of character or invasion of privacy. Instead, her attorney tried to contact the White House through an intermediary, threatening to embarrass President Clinton publicly with the story – unless Paula Jones and her husband received money from Clinton and help finding jobs in California. "Bill's got lots of Hollywood contacts," her attorney said. After the intermediary, an Arkansas businessman, refused to relay the message, noting that the payment of hush money was illegal, Paula Jones carried out her threat and publicized her tale of sexual harassment. The forum she picked for the explosive announcement – that Bill Clinton had allegedly dropped his pants and requested oral sex from her in an Arkansas hotel room – was hardly a nonpartisan occasion. Paula Jones first told the world her story at the twenty-second annual Conservative Political Action Conference in February 1994, not long after the president's State of the Union address.

Three months later, Jones filed a civil suit against the president, claiming that the incident – which had allegedly occurred three years earlier – was the source of "severe emotional distress." A number of right-wing organizations supported Jones. Accuracy in Media (financed by Scaife) placed ads in mainstream newspapers describing the woman's plight and attacking the media for ignoring it. The Landmark Legal Foundation (financed by Scaife) offered to assist her attorneys. Judicial Watch (financed by Scaife) subsequently challenged President Clinton's use of insurance payments to cover his own legal fees. And the Independent Women's Forum (which received its first grant from Scaife that very year, in the amount of $100,000) consulted a private attorney named Kenneth W. Starr about some of the legal issues in the Paula Jones case. Starr had worked in the Justice Department during the Reagan administration and had served as solicitor general under President Bush. He planned to write an amicus brief on behalf of Paula Jones, and he advised her attorneys on at least three separate occasions. But before Kenneth W. Starr could become immersed in the Paula Jones case, he was appointed independent counsel in the Whitewater investigation, a job that by law was meant to be free of any "political conflict of interest."

The story of how Kenneth W. Starr became the independent counsel investigating the president has been labeled the "un-immaculate conception" by one of Starr's associates. The first Whitewater special counsel, Robert B. Fiske Jr., was a moderate Republican appointed to the post in 1993 by Attorney General Janet Reno and endorsed by Sen. Bob Dole and Sen. Al D'Amato. A year later, Congress passed legislation that gave a panel of federal judges the authority to appoint an independent counsel with broad powers to conduct nonpartisan inquiries. On July 1st, 1994, Reno asked the judges on this panel to keep Fiske on the job; he was in the middle of his Whitewater investigation. The following day, Sen. Lauch Faircloth, a conservative Republican from North Carolina, attacked Reno's request, claiming that Fiske's re-appointment would be "highly improper." Right-wing organizations were infuriated by Fiske's recent conclusion that Vincent Foster had indeed committed suicide. Faircloth argued that Fiske's work was tainted by conflicts of interest and that the panel should appoint "a new, truly independent counsel that will enjoy the confidence of those who seek truth and justice, regardless of party."

Two weeks later, Lauch Faircloth and his fellow Republican senator from North Carolina, Jesse Helms, joined the presiding judge on the Independent Counsel Panel for a private luncheon. Judge David Sentelle, also from North Carolina, had been appointed to the U.S. Court of Appeals by President Reagan at Jesse Helms' request. Sentelle is a conservative, to say the least. His refusal to resign from private clubs that did not admit blacks or women had delayed his Senate confirmation for months. And Sentelle had written a curious essay on country music for a book called Why the South Will Survive, published in 1981. "The main appeal of the music of the South," Sentelle wrote, "is found among . . . the long-historied, little-loved descendants of the people who built half the civilized world – the Anglo-Saxons."

A few weeks after these three Republicans had lunch, the Independent Counsel Panel fired Fiske and named Kenneth W. Starr to replace him. Judge Sentelle's decision to remove Fiske was backed by the other conservative Republican on the three-man panel, Judge Joseph T. Sneed. The move took the Clinton administration completely by surprise. Judge Sentelle later said that his luncheon with Faircloth and Helms had been dominated by talk about Western wear and old friends. "To the best of my recollection," Sentelle claimed, "nothing in these discussions concerned independent-counsel matters." In 1990 Judge Sentelle had helped overturn the conviction of Oliver North. Sentelle often attended meetings of the Federalist Society, as did Kenneth W. Starr.

Previous independent counsels investigating the president have either resigned from their law firms or taken a leave of absence to prevent the slightest appearance of any conflict of interest. Kenneth W. Starr, on the other hand, continued to represent clients for his firm, Kirkland and Ellis, while serving as independent counsel, earning more than $1 million a year in legal fees and privately working closely with groups that vehemently oppose the Clinton administration – such as the tobacco industry, the Landmark Legal Foundation (financed by Scaife) and the Institute for Justice (financed by Scaife). Starr continued to serve on the advisory board of the Washington Legal Foundation (also financed by Scaife), which had called for Fiske's resignation. Prior to the current scandal, one of Starr's most overtly partisan acts in office was the issuing of a subpoena to Hillary Rodham Clinton. Starr had already interviewed the first lady several times at the White House. In January 1996, however, Starr demanded that she testify about the Whitewater scandal before a grand jury, an unprecedented move. Hillary Rodham Clinton's subpoena gained an enormous amount of publicity – no other first lady had ever been called before a grand jury – but it did not lead to an indictment. The independent counsel's subpoena was issued a few days before President Clinton's 1996 State of the Union address.

Kenneth starr's behavior in recent months has also set a number of unfortunate precedents. Starr is the first independent counsel ever to use a hidden microphone during an investigation of the president; he is also the first to threaten a president's alleged mistress with prosecution for failure to discuss her sex life. And he is the first to threaten the mother of an alleged presidential mistress.

Starr's decision to have Linda Tripp make secret recordings of her "friend" and his subsequent attempt to make Lewinsky tape the president have been defended as routine prosecutorial tactics. There is some truth to that argument. The number of federal wiretaps each year has more than doubled since Bill Clinton took office. Friends and family members are often forced to collect evidence on one another in federal drug cases. It is remarkable, however, that an independent counsel would contemplate a "sting" operation against the president of the United States in order to investigate sexual acts.

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