Contempt Page 3

  Meanwhile, Bill Clinton had become the nation’s youngest governor. In early 1979, I crossed paths with him in a crowded elevator at the Hyatt Regency hotel at the foot of Capitol Hill. He was attending a Washington, D.C., conference, and I was staying at the hotel while sitting for the D.C. bar exam. I got on the elevator dressed in jogging clothes. Clinton, on the other hand, was sporting a sharp-looking suit. The elevator was crowded, so I did not get to say hello. But his charisma was obvious. He was charming, commanding, and friendly. As the nation’s youngest governor, he was on top of the world.

  I had been aware of his meteoric rise in national political circles. But I had zero involvement in politics during my time at the Supreme Court. That was soon to change. In the meantime, I was still laying the foundations of what I hoped would be a long legal career.

  Back in the private sector, I was working on a sensitive criminal case arising out of the Kennedy Space Center. Our client, a contractor on the space program, had been accused of defrauding the government. It looked like the case might go to a grand jury for possible criminal charges. I was in charge of the day-to-day investigation. Part of my duty was to prepare for Armageddon if, heaven forbid, the company was indicted.

  Who would be our lead defense counsel? It couldn’t be a D.C. lawyer or, worse, a faraway California law firm. The situation called for home-state talent. Gibson Dunn retained Harris Dittmar, a Jacksonville litigator who had successfully defended former United States senator Edward Gurney in a corruption case. A staunch defender of President Nixon, Gurney had been indicted for perjury. To everyone’s surprise, “Ditt” won an acquittal.

  “What’s the secret of your success?” I asked Ditt as we were driving to Orlando from Cocoa Beach.

  “I let the judge and jury know that they can trust every word that comes out of my mouth,” Ditt said. “I will not be proven wrong.” That meant relentless preparation, plumbing the depths of the case.

  Likability. Preparation. Honesty. Advice from seasoned attorneys like Judge Dyer and Ditt became my watchwords.

  We averted Armageddon in Florida, and I resumed my day-to-day practice back in Washington. I drew more closely into the orbit of William French Smith, a Gibson Dunn senior partner. In the wake of Ronald Reagan’s landslide victory in 1980, Bill Smith gave me various D.C.-based assignments as the presidential transition got under way.

  On Christmas Eve in 1980, Smith called me at my parents’ home in San Antonio as we were about to sit down for lunch. As chair of Reagan’s transition advisory committee, Smith was identifying people for the Cabinet. He wanted to know if I would be interested in joining the administration as chief of staff and counselor to the new Attorney General—none other than William French Smith.

  A native New Englander, Smith was characteristically sparing in his comments. A skilled listener, Bill was simply matter-of-fact. Come aboard and help me out. I accepted on the spot.

  Suddenly I was back in public service, this time in the Department of Justice, the massive Greek Revival–style building on Constitution Avenue. I felt immediately at home.

  Early on, I became close to FBI Director William Webster, a former federal appellate judge. “Ken, you are the conscience of the Attorney General,” Webster said. “You’ve got to give him your best judgment. In the government, you have to turn square corners. No jaywalking.”

  My three years as chief of staff for the Attorney General during Reagan’s first term were busy and a thorough initiation into the rancorous political process. But my professional ambition was now to become a federal judge.

  In early 1983, I received the news that I was being considered for an opening on the Fourth Circuit Court of Appeals in Richmond, Virginia. The Justice Department began negotiations with Virginia senator John Warner. He had identified several candidates for the slot, all experienced federal judges from around the Commonwealth.

  I was only thirty-six, quite young to be a federal judge. The DOJ reached an agreement on my nomination with Senator Warner, but he reneged at the last minute.

  “I cannot support Ken Starr,” Warner said at a press conference. “He hasn’t graduated from the school of hard knocks.”

  Since Warner had married into vast wealth, his perspective seemed odd to me. Eventually, the post went to my Justice Department colleague, J. Harvie Wilkinson. A bit older than I, he hailed from a prominent Virginia family, which gave me a clue as to why he had been chosen. Warner had an eagle eye on his next election.

  Knowing how disheartened I was, a friend at our church who had served in President Kennedy’s legislative shop put his arm around me one day.

  “Ken, you can’t take this personally,” he said. “These are just different people wearing the same old clown costumes.”

  The bitter disappointment turned out to be a blessing in disguise. My name was put forward for a seat on the D.C. Circuit, a prominent court that deals with important public law and constitutional issues. It’s sometimes called the second highest court in America. My mentor, Chief Justice Burger, had been elevated to the Supreme Court from the D.C. Circuit.

  Congress held my confirmation hearings in the summer of 1983.

  “You are very young,” observed Senator Arlen Specter, a Republican from Pennsylvania. “I realize I’ll have to work very hard,” I responded. No one raised any issues about my private practice or my actions at the Attorney General’s office, and I was confirmed with little ado.

  “Ladies and gentlemen, welcome to the monastery,” said the chief judge welcoming newcomers to “baby judges school” at the Federal Judicial Center in D.C. Monastery or not, I loved it. Not long before I arrived, Reagan appointed Robert Bork and Antonin Scalia, both of whom I greatly admired, to the D.C. Circuit. And once I took the bench in October, it was humbling to work in the company of renowned judges such as J. Skelly Wright, Spottswood Robinson III, David Bazelon, Carl McGowan, Ruth Bader Ginsburg, Patricia Wald, Abner Mikva, and Harry Edwards.

  I was never so happy in my professional life as being a judge, and it came at a good time in my personal life. Since the court’s work was quite structured, I knew a year in advance what my schedule would be. I didn’t have to travel, and I had time to focus on my family and on giving back.

  Alice and I had by now been blessed with three children. Alice worked in marketing and public relations for a real estate development company and volunteered with civic organizations. We joined the McLean Bible Church, a burgeoning megachurch pastored by Lon Solomon, a Messianic Jew from Virginia who converted to Christianity as a college student. Though the trajectory of our lives had been quite different, Solomon and I became close friends. Alice and I participated in inner-city and special-needs ministries.

  I taught Sunday school, coached my kids’ sports teams, and was deeply involved in family life. I also entered conversations with Georgetown University about teaching a course at the law school.

  But after the election of George H. W. Bush in November 1988, I learned I was the new president’s choice for solicitor general, the attorney who represents the administration in disputes before federal courts, particularly the Supreme Court. While I was honored by his choice, I was in my element on the appellate court and had no desire to leave. I was on track to become the chief judge of the D.C. Circuit. In my heart, I harbored the not-so-secret ambition of someday serving on the highest court in the land.

  I spurned two approaches from senior government officials. Then I got a request to meet with Attorney General Dick Thornburgh in his office.

  “The administration needs you,” Thornburgh importuned. “We believe you are the right person for the job.”

  Although it was a nice compliment, I walked back to the courthouse with a heavy heart. Duty was calling. But if I left the bench, the likelihood of returning to a judgeship was remote. I consulted with my friend Judge Webster.

  “Ken, you are being piped aboard,” he said warmly. I
was to salute smartly and move forward. I called Attorney General Thornburgh to accept, hung up the phone, went into my private bathroom, shut the door, and cried like a baby. I said yes because of the tug of duty. I was asked to leave a job that I loved to return to a department that I adored.

  In the meantime, my father had been diagnosed with cancer. I flew to San Antonio to see him just after the announcement of my nomination as solicitor general in February 1989. He was disappointed with my decision to leave the court. A judgeship was a noble calling—not to mention a lifetime appointment. For my father, being a federal judge represented the epitome of public service and success. He died the next week of a heart attack. It was devastating, not just because of the loss, but because in a strange way I felt I had let him down.

  “It must have been hard for you to give up the judgeship,” said Justice John Paul Stevens, after I was ushered into his chambers for the traditional courtesy call following my uneventful confirmation as solicitor general in May 1989. He understood how much I loved the court.

  Despite my disappointment, I threw myself into my new work. I set up my staff, hiring John Roberts, who had worked at the AG’s office when I was chief of staff, as deputy solicitor general. (Roberts would go on to the Supreme Court in 2005.) After reading in the legal press that lawyers with the office sometimes didn’t seem prepared, I launched a moot court program, where attorneys presenting cases on behalf of the government tried out their arguments before “mock” judges.

  As solicitor general, you are always busy, almost always managing a crisis. The work was exhilarating but exhausting. Over those four years, every one of my twenty-five arguments was challenging. I never advanced an argument I thought was unreasonable, but I also embraced a traditional practice of the solicitor general. Our role was to serve the demands of the rule of law, and if the federal government had secured a judgment that was indefensible, we would admit it. The solicitor general would go to the Supreme Court and say, in effect, “We confess error. We made a mistake.” This was fundamental to our integrity. We wouldn’t manipulate the facts or the law in order to win.

  Throughout this period, I maintained a daily practice of personal Bible study and prayer. I regularly attended a men’s Bible study group hosted by David Bradley, now majority owner of Atlantic Media, which publishes the Atlantic. I always had a favorite Scripture in mind when I went into an argument or attended a key meeting. One of my favorites was Philippians 4:13: I can do all things through Christ who strengthens me. Or Micah 6:8. And what does the Lord require of you? To act justly and to love mercy and to walk humbly with your God.

  Faith proved to be a pillar of strength in my daily life. I found my stride, and despite the grueling schedule, enjoyed supervising a team of brilliant lawyers. Then in November 1992, Bush lost the election to Bill Clinton. The Republicans were out, the Democrats in, which meant that I was out of a job. The loss was personally difficult, because I had become close to President Bush and Vice President Dan Quayle. And to my surprise, I really loved being solicitor general, despite my initial anguish at leaving the D.C. Circuit.

  On Inauguration Day, January 20, 1993, I packed up my office at the DOJ. Looking out of my office window, up Constitution Avenue to Capitol Hill, I saw thousands of people milling about, waiting for Clinton to be sworn in. I flashed back to that fleeting elevator encounter with Clinton in 1979. The idea that a youthful governor from a small southern state could unseat an incumbent president had shocked everyone but those followers who had seen his brilliant political talents early on.

  Little did I know that a few months later, on March 23, 1993, Clinton’s newly confirmed Attorney General, Janet Reno, would abruptly fire all ninety-three United States Attorneys. When the opposing party takes over, U.S. Attorneys customarily submit letters of resignation, which are noted, but some are typically set aside until the president has nominees in place, so that the work of the office is not disrupted. But that was not the Clinton way.

  And little did I know that this bold stroke would provide a revealing early example of the Clintons’ disdain for the traditional processes of the federal government.

  I turned out the lights. My time at Main Justice was over.

  CHAPTER TWO

  The Call

  For the first year and a half of the Clinton administration, I practiced law with the D.C. office of Kirkland & Ellis and taught a seminar on constitutional law at NYU. I enjoyed both immensely. Then, in July 1994, I got a telephone call from Judge David Sentelle.

  “Ken, the Special Division is now looking into appointing an independent counsel for the Whitewater matter,” he said. “Would you be willing to be considered?”

  The Whitewater controversy had been in the news, but I had paid little attention to it up to that point. I had now been out of active politics for twelve years, and I wasn’t planning to get back in. What thinking I did devote to Bill Clinton had been focused on his administration’s decidedly mixed record on legal and judicial appointments.

  Sure, I knew that during Clinton’s campaign for the presidency in 1992, tales had emerged of criminal wrongdoing from the swamp of Arkansas political wheeling and dealing. Federal regulatory authorities—in particular the Resolution Trust Corporation (RTC)—believed they had evidence that a Little Rock bank, Madison Guaranty Savings & Loan, had perpetrated fraud. The bank had been shuttered in 1989, costing taxpayers $60 million from the Federal Savings and Loan Insurance Corporation (FSLIC).

  In March 1992, the New York Times published a front-page article about the questionable Madison Guaranty deals, including one that was particularly of interest during election season: a land-development project called Whitewater, located in the scenic Ozark Mountains of north-central Arkansas. The four owners of the property: Jim and Susan McDougal, owners of the bank, and Bill and Hillary Clinton.

  No presidential candidate likes to have a bombshell story suggest that he is connected to fraud or failure, even if he isn’t criminally responsible. The Clintons tried to brush the allegations off. As Hillary’s close friend Susan Thomases rightly pointed out, “No one could understand the article,” which involved a lot of complicated financial terms. Whitewater was just a failed land deal, a financial embarrassment, but nothing criminal, the Clinton team suggested, and Bill Clinton went on to win the election.

  Yet despite the dodging and the election victory, pressure mounted, and in October 1993 the RTC submitted no fewer than nine criminal referrals to the U.S. Attorney’s Office in Little Rock. But who should investigate? The Clinton-appointed U.S. Attorney, under pressure, sent the referrals to the Criminal Division of Main Justice.

  The assignment to career professionals still raised a question of conflict of interest. After all, the Criminal Division reported to Attorney General Janet Reno, who reported to President Clinton.

  That perceived conflict was the basic reason for the “special prosecutor law,” a Watergate-era reform. The Ethics in Government Act of 1978 had created the so-called Special Division of my former court, the D.C. Circuit, for handling high-visibility criminal investigations of Executive Branch officials, including the president.

  The Special Division consisted of a panel of three federal appellate judges who would appoint prosecutors. These independent counsels investigated matters that the Attorney General and Main Justice could not appropriately handle on their own due to a perceived political conflict of interest, and they brought criminal prosecutions if warranted. Different prosecutors would be appointed for different criminal matters.

  The idea was simple: If the president or officials close to him were to be investigated for possible criminal wrongdoing, then the matter should be handled by someone independent of the administration.

  The special prosecutor law, though, had been allowed to lapse in December 1992, right after Clinton’s election in November.

  Now, Reno, even if she wanted to, had no authority to go to the suddenly
dethroned panel of judges and ask for the appointment of a “statutory” independent counsel to investigate Whitewater, or any other matter. Congress debated reinstating the law, but until it did, the judges could not appoint an investigator.

  However, Reno could use executive power to appoint a “special counsel” to probe the same allegations. And in January 1994, one year after his inauguration, President Clinton directed her to do just that.

  Bernie Nussbaum, the savvy New York lawyer serving as White House counsel, was vehemently opposed to the entire special prosecutor apparatus. With his customary panache, Bernie warned the president: “This is a dangerous institution. . . . You appoint this, it will be like a knife in your heart.”

  The White House spin was that there was no need to wait for a statutory special prosecutor, since there was no wrongdoing, but that nonetheless it would be good to wrap up the controversy once and for all.

  On January 20, Reno named an outstanding lawyer, Robert B. Fiske, a former United States Attorney for the Southern District of New York, to take on the role. In her order, Reno gave Fiske the authority to investigate any violation of federal criminal law “relating in any way to James B. McDougal, President William Jefferson Clinton, or Mrs. Hillary Rodham Clinton’s relationship with Madison Guaranty Savings & Loan Association, Whitewater Development Corporation, or Capital Management Services.” The order extended to matters arising out of the above, “including perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.”

  Over the next few months, Fiske established temporary quarters in Little Rock. He assembled a terrific team of lawyers and investigators who built on the work done by the DOJ over the previous year. He began issuing subpoenas for witnesses to appear before a Little Rock federal grand jury.