Contempt Read online

  Meanwhile, after many months of wrangling, Congress reauthorized the independent counsel statute on June 30, 1994. The Special Division of the D.C. Circuit emerged from its hiatus, once again open for business.

  Judge Sentelle was the presiding officer. The other two judges were John Butzner of the Fourth Circuit in Richmond (a Democratic appointee), and Joseph Sneed of the Ninth Circuit in San Francisco (an appointee of Richard Nixon and father of recent presidential candidate Carly Fiorina).

  The obvious course for the Special Division judges would have been to reappoint Fiske. That was the Clinton administration’s position. In her official request to the Special Division, Reno specifically recommended that Fiske now become the statutory independent counsel.

  But the judges were of a different view. Again, it could be said that there was an appearance of conflict of interest with Fiske since he had been appointed by Reno. She in turn had been appointed by Clinton, the principal subject of the Whitewater investigation. This all made logical sense, but it also made the process appear suspicious. To preserve the integrity and independence of the process, the Special Division judges were looking for a Republican.

  And this was why Judge Sentelle was on the phone with me.

  I knew Judge Sentelle well. We had served together on the D.C. Circuit. Even after I left the bench, I continued to attend the informal monthly judges’ prayer breakfast sessions held in the Superior Court dining room, usually presided over by Sentelle.

  I wasn’t at all sure I was going to give him the answer he wanted, though. Frankly, I harbored deep misgivings about the independent counsel law. I regarded the well-intentioned measure—a Watergate reform pushed by President Jimmy Carter in 1978—as unconstitutional. It intruded into the powers of the Executive Branch and thus violated a basic principle in our structure of government: separation of powers. The measure was also unwise as a matter of sound policy and good government, giving too much power to an unaccountable, unelected official.

  The Justice Department had taken the position in 1982 that the law shouldn’t be reauthorized. In fact, I was quoted as privately calling the idea “stupid, stupid, stupid.”

  But Congress had repeatedly reauthorized the law. In 1988, the Supreme Court had upheld the measure against constitutional challenge by a 7–1 majority. (Newly appointed Justice Anthony Kennedy recused himself from participation.) Justice Scalia was the solitary dissenter. In my view, Scalia had it exactly right. Yet now it had been reauthorized once again, and though as a private citizen and former judge I had my own views, the law was the law.

  My opinion of the independent counsel law aside, I sensed that investigating Clinton, our youthful new president, was not likely to be a career-enhancing move.

  Despite my lack of enthusiasm, I told Sentelle I would consider the appointment. I had never said no to a call to serve the country and wasn’t going to start doing so now. But I surmised that I had drawn the short straw.

  Not long after, a follow-up call came into my law office from Sentelle’s assistant. The three judges wanted to see me in person. In mid-July, I presented myself to Sentelle’s chambers at the federal courthouse on Constitution Avenue at the foot of Capitol Hill. Everything was familiar to me—the hallways of the fifth floor, the quiet of appellate chambers, and the friendly faces of the court personnel. I greeted many old friends.

  Sentelle’s long-serving assistant ushered me into the inner sanctum to meet with Sentelle and his colleague, Judge Butzner. On the phone from San Francisco was Judge Sneed, who had briefly been my dean at the Duke law school twenty years earlier.

  Their question was straightforward: Was I the right choice to be the Whitewater independent counsel? They were posing their own question to me. It seemed a bit odd. I hadn’t applied for the job, so why should I be called on to answer the Special Division’s basic question?

  Butzner was unfailingly polite, but seemed a bit wary. I sensed his inclination may have been to stay the course with Fiske. But Butzner, a quintessential Virginia gentleman, was brimming with questions. Nothing hostile, just probing.

  By phone, Sneed seemed to be actively promoting my “candidacy.” As the conversation unfolded, it became even clearer that Sneed was suggesting that I should be the panel’s choice. After all, I had been a judge, and there was a quasi-judicial dimension to this unusual post that Congress had created. It bears noting that under the reauthorized law, the “independent counsel” was no longer to be called a “special prosecutor.”

  The difference from the original job title back in 1978 signaled a significant change in the role itself. The independent counsel was to reach judgments, but not necessarily to bring charges. In fact, the statute expressly directed the independent counsel merely to advise the House of Representatives if there were possible grounds for impeachment. It left the question of the president’s fate to Congress.

  The iconic Watergate special prosecutor, Archibald Cox, seemed to hover over our conversation. Cox, an active Democrat who had given a policy speech criticizing the Nixon administration, had been selected by Attorney General Elliot Richardson to investigate the Watergate break-in during the 1972 presidential campaign. Like me, he was appointed because of his membership in the opposition party, and, like me, had once served as an earlier president’s solicitor general. I hoped our similarities would end there, since his dogged investigation had eventually led to his firing in the infamous Saturday Night Massacre.

  Nixon had ordered Attorney General Elliot Richardson and Deputy Attorney General Bill Ruckelshaus to ax the resolute Cox. During their Senate confirmation hearings, the two men had assured the Senate Judiciary Committee—and the full Senate—that they would preserve and protect the special prosecutor’s independence from political pressure. Neither could, in good conscience, obey Nixon’s order to get rid of Cox. Instead, they resigned. So, Solicitor General Robert Bork, serving as acting Attorney General, fired Cox.

  The resulting political firestorm and eventual disclosure of incriminating Oval Office tape recordings led to Nixon’s resignation in August 1974 and finally, during the Carter administration, to the “remedy,” the creation of the special prosecutor law.

  Throughout my conversation with the three judges I was entirely comfortable. I wasn’t auditioning. I certainly wasn’t angling for the appointment. But as we bade farewell, I left Judge Sentelle’s chambers with the distinct sense that I was likely to end up as the Special Division’s choice. If so, I wouldn’t decline. If I wasn’t, all the better.

  Within days, Sentelle called me at my law office and posed the ultimate question. Would I be willing to serve? Having consulted with Alice, I said yes. No hesitation on my part, but no enthusiasm either. Sentelle didn’t indicate that a decision had been made; he just said he would get back to me before long. The call was short and to the point.

  In the early afternoon of Friday, August 5, Sentelle called again. He reached me in a hotel room in New Orleans, where the annual meeting of the American Bar Association was under way. I had several speaking commitments during the yearly conclave.

  “Ken, I’m about to sign the order appointing you as independent counsel,” Sentelle said. “Are you still willing to take it?”

  “Yes,” I said.

  A slight pause on the other end. “Very well. I just signed it. It’ll be filed with the clerk straightaway.”

  I hung up the phone and immediately called Alice to alert her. She hung up, not letting on how upset she was at this appointment. She understood I had to respond to a summons to duty.

  I went for a jog along the east bank of the Mississippi River. I needed to exercise and clear my head. The path was familiar. During my clerkship with Judge Dyer, his executive assistant, another law clerk, and I had flown to New Orleans each month for oral arguments in the magnificent federal courthouse on Camp Street, across from Lafayette Square. I loved the Big Easy, and had often run along the river.


  Now I huffed and puffed along on the muggy riverbank under much different circumstances and mulled over my new role. In my naive thinking, I simply had a new assignment. The job ahead was all about facts and law.

  There had been no mandate from the three-judge panel that I would quit my law practice. That was not anticipated by the statute; the independent counsel role was simply a special assignment. In any event, that would have been impossible, not to mention financially challenging. I still had several important appellate cases in the pipeline and those needed my attention.

  I planned to return promptly to Washington after winding up my business in New Orleans, take the oath of office, and head down to Little Rock to begin my new task.

  As I jogged, I had no idea a national media frenzy had just erupted. Fiske was out, Starr was in. The entire Washington press corps set out to find the new investigator. When I got back to my small hotel in the French Quarter, I found dozens of phone messages from reporters. I didn’t return a single call.

  I called no news conferences, nor did I hire a press spokesman. It never occurred to me. I held no press conferences as a judge. It’s just not done. As solicitor general, I held only occasional press conferences in connection with policy issues, but not Supreme Court cases. In my new role, I intended to follow that familiar pattern. I had no idea that my stony silence, deeply rooted in legal tradition, would prove costly.

  On Sunday afternoon, I was scheduled to make remarks at a meeting of the Federalist Society, a conservative group founded a decade earlier to promote the values of the rule of law, constitutionalism, and judicial restraint. The Society was hosting a reception for lawyers, judges, and law students. It was a public event. The meeting was besieged by a gaggle of reporters and cameramen. The Federalist Society folks loved the media attention, but I declined to comment about my new responsibility.

  The media pressed ahead, posing basic questions. Who was this new guy? I found the “who’s this” inquiry odd. I was well known in national legal circles, having served as a judge on a high-profile court, and as solicitor general arguing closely watched and frequently controversial cases.

  Earlier in 1994, I had been selected by the bipartisan Senate Ethics Committee to conduct a sensitive review of the private diaries of Senator Robert Packwood of Oregon. The senator had been charged with various improprieties against women. My work on behalf of the committee was widely commended by senators of both parties, with even the embarrassed Senator Packwood remarking that he thought I had been “fair and certainly thorough.” Those compliments well described my twin goals: to be scrupulously fair and painstakingly thorough.

  I had been mentioned by President Bush as a possible nominee to the Supreme Court, but had been criticized in some right-wing quarters as not conservative enough.

  “Starr’s a nice guy, but he’s a squish” went a common critique. David Souter of New Hampshire got the nod. I came in second, as Attorney General Thornburgh consoled me at the time.

  On the day after my appointment as independent counsel, the New York Times described my reputation as a “soft-spoken, even-tempered professional whose work is marked by thoroughness,” who would rise above his inexperience as a prosecutor “to cast a balanced eye on a difficult inquiry . . . likely to be comfortable in the inevitable glare of publicity with a personal style that is polite to the point of near blandness.”

  The writer quoted top legal intellects in Washington, D.C.

  “There’s really a small cast of people who have accumulated the kind of credentials he has,” said Lincoln Caplan, who had written a book called The Tenth Justice, focusing on the Office of the Solicitor General. “Such people prove their reliability to the culture by transcending rank partisanship. He managed to be consistently conservative without being sharp-edged.”

  Even the American Civil Liberties Union had generous words: “If I was going to be a subject of an investigation, I would rather have him [Starr] investigate me than almost anyone I can think of,” said Arthur Spitzer, the legal director of the ACLU’s Washington office. “I don’t have the feeling that he is a fervid prosecutor in the sense that he thinks that anyone accused of something must be guilty.”

  The Washington Post quoted Bush’s White House counsel, Boyden Gray, who said Starr is “very level-headed and evenhanded and he is impartial in his approach to problems and his demeanor and his instincts. He’s not an aggressively partisan or an aggressively ideological lawyer.”

  I basked in the glow of those kind words for about a day. Then the attacks started, first from the White House, charging that as a Republican I was manifestly unfit for the job.

  “I think there is a real appearance of unfairness,” Bob Bennett, Clinton’s personal lawyer, told the Washington Post. “If Starr found anything wrong, I don’t think anybody could have any confidence in that.”

  Bennett cited my publicly expressed opinion that President Clinton enjoyed no “constitutional immunity” from a civil rights lawsuit filed by Paula Corbin Jones, an Arkansas state employee, for actions taken while Clinton was governor. Bennett was representing Clinton in that case.

  A week later, Bennett told a wire service that my appointment “didn’t pass his smell test.” He told USA Today that I should decline the job.

  I found this shocking. I knew Bob Bennett well. He understood fully that I was a mainstream conservative with a strong respect for the rule of law.

  In the months before being appointed independent counsel, I was teaching constitutional law at NYU. The issue of presidential immunity was the talk of the town among Washington lawyers, especially people interested in the Constitution’s separation of powers. The president was asserting a prerogative that had no moorings in the long history of the American Republic. I viewed this as an extravagant legal claim that was doomed to fail.

  In late May, I had participated in a panel discussion with several other lawyers, including White House Counsel Lloyd Cutler, on PBS’s MacNeil/Lehrer NewsHour.

  Cutler, a lion in the D.C. jungle, had taken over on an interim basis after Nussbaum resigned in March 1994. Bernie had been a New York fish out of Washington, D.C., water. Critics, as reported in the New York Times, said his “loyalty to the Clintons had become a liability as he appeared to step in repeatedly to shield the president and First Lady from embarrassment.”

  Clinton contended that any actions in the Jones lawsuit should be postponed until the end of the president’s term. Harvard Law School professor Laurence Tribe shared his view.

  I disagreed, saying, “It’s a very serious step to take to say that the president of the United States is simply too busy to respond to lawsuits the way others have to, even if we’re willing to bend over backward to protect his schedule.”

  Like many others seeking my opinion on the issue, one of Jones’s lawyers, Gilbert Davis, called me. I had no involvement or interest in the Jones v. Clinton litigation. But I did offer my opinion that sitting presidents are not immune from lawsuits for actions that occurred prior to their taking office. Davis was not alone. I was also called by Bob Fiske, inquiring about the possibility of my authoring a brief contesting the proposition that the president is immune from civil litigation. The reason: Fiske wanted to leave open the possibility of bringing a civil action against Clinton in connection with the Arkansas investigation.

  My position did not please the White House. The Clintons’ lawyers and surrogates ginned up a conspiracy theory, alleging that the Special Division judges had sought out the most partisan of Republicans to go after the president.

  The Washington Post reported that before my appointment, Judge Sentelle had lunched—as he occasionally did—in the Senate dining room with the two Republican senators from his home state of North Carolina, Jesse Helms and Lauch Faircloth, both outspoken Clinton critics and both concerned that Fiske had a conflict of interest. The implication was that Sentelle had allowed them to sway h
is judgment, pushing him to find someone committed to taking Clinton down.

  When asked about the lunch, Sentelle said the threesome did not discuss matters concerning the independent counsel, but talked about western wear, old friends, and “prostate problems.” That had the ring of truth to any man over the age of fifty.

  But an anonymous source added spice to the conspiracy theory by claiming he had seen Faircloth and Sentelle board the tram underneath the Capitol engaged in an “animated” discussion. Though he had no idea what they were discussing, the source had gone to the Post because he felt their discussion was likely inappropriate. This was silly. Nonetheless, Democratic opposition ramped up. On August 13, the Washington Post ran a story with the headline: DEMOCRATIC CRITICISM OF STARR’S APPOINTMENT MOUNTS.

  Sentelle’s lunch meeting was “alarming,” according to Rep. John Bryant, a Democrat from Texas and chairman of the House Judiciary subcommittee that wrote the independent counsel law. Senator Carl M. Levin, Michigan Democrat and chairman of the panel that had oversight of the independent counsel system, opined that “Starr’s appointment was a threat to the IC system.”

  On August 10, James Carville, Clinton’s campaign manager and one of his closest political advisers, called for my resignation.

  “I think he [Starr] should never have been appointed,” Carville said, pointing out that I had once briefly considered running for a Senate seat in Virginia. “Partisan politics is driving this whole thing.” Carville, with his bald head, reptilian gaze, and gift for colorful phrases, found me an irresistible target. With the help of Carville, Lanny Davis, a Democrat political consultant, and Sidney (“Sid Vicious”) Blumenthal, Clinton’s assistant and senior adviser, I was transmogrified into a right-wing hit man.

  On August 18, the New York Times, which had praised me two weeks before, published an editorial titled “Mr. Starr’s Duty to Resign.” It cited Judge Sentelle’s “flamboyantly bad judgment” in having lunch with Faircloth and Helms. Now that the cloud of “personal favoritism” hung over my assignment, as a “matter of public service and personal honor, [Starr] should resign the appointment.”