WASHINGTON -- Kenneth Starr, the Whitewater independent counsel, has taken a lot of grief lately from Democrats in Congress, President Clinton's lawyers and friends and some journalists.
But on Wednesday he faced criticism from a far more troublesome source, in a carefully but harshly worded judicial opinion that dismissed Starr's tax case against a former Justice Department official, Webster Hubbell.
Judge James Robertson of the U.S. District Court here hit Starr on two fronts, saying he did not correctly understand his purview and was overly zealous in his pursuit of Hubbell. Robertson called the counsel's pursuit of Hubbell a "quintessential fishing expedition," and last week called some of Starr's constitutional views "scary."
The decision, which Starr's office said he would appeal, was a stinging rebuke for the independent counsel. It came after other recent setbacks, including the release from prison of Susan McDougal, another central figure in Starr's Whitewater investigation; the Supreme Court's refusal to grant emergency consideration of Starr's efforts to force the testimony of Secret Service employees and a White House aide, Bruce Lindsey; and the Supreme Court's decision that Starr could not pierce the attorney-client privilege between Vincent Foster Jr., the White House lawyer who committed suicide, and his lawyer.
But Wednesday's decision was directed more personally at Starr than the other court decisions. Indeed, it is the first time a court has passed judgment on the independent counsel's performance.
Its effect may also be, in some ways, even more vexing for Starr than the other rulings. In losing this skirmish, Starr has lost, for the time being anyway, his ability to use the tax charges as a way to pressure Hubbell into cooperating with the larger Whitewater investigation. The independent counsel has long believed that Hubbell has knowledge of misdeeds by the president and his wife, Hillary Rodham Clinton.
Hubbell is a longtime friend to the Clintons, dating to their days in Little Rock, Ark.; he is also a former law partner of Mrs. Clinton.
While the pressure has similarly been eased for Mrs. McDougal, who has refused to answer questions before Starr's Arkansas grand jury and was sent to jail by Starr to force her testimony, her knowledge of the Clintons' interests is not as wide-ranging as Hubbell's. Mrs. McDougal, a former business associate of the Clintons from Arkansas, was freed from prison last month for health reasons.
Given the protracted, seesaw nature of the four-year legal combat between Starr and the president, it would be perilous to view any single development in the complex web of the independent counsel's investigation as decisive. And Robertson, though he wrote a careful opinion, was challenging some contrary findings by other judges, and is, after all, only a district judge.
"The way you have to look at this kind of investigation is like a trial where both sides have their ups and downs," said Theodore Boutrous Jr., a litigator at the Washington law firm of Gibson, Dunn & Crutcher. Boutrous, who was a member of former President Reagan's legal team in the Iran-Contra investigation, added, "It's impossible to draw sweeping conclusions from what happens on a particular day."
Robertson's decision was the talk of the city's law firms and political circles, already abuzz over an article in the magazine Brill's Content that accused Starr's office of unethical leaks to reporters. The judge's opinion dismissing the tax case against Hubbell gave Starr's doubters significant and fresh material.
Because Hubbell had already served 17 months in prison after pleading guilty to fraud in an earlier case brought by Starr involving Hubbell's former law firm, some viewed the indictment of Hubbell and his wife on tax charges last April as overly harsh.
Then, just days after Starr filed the tax charges against the Hubbells, he had Mrs. McDougal indicted on three counts of criminal contempt and obstruction of justice for failing to answer questions from his grand jury. Like Hubbell, Mrs. McDougal had already been severely punished, having completed an 18-month jail term for civil contempt on the same charges.
Given that both actions came as the Arkansas Whitewater grand jury was running out of time and steam, both supporters and critics saw Starr's moves against both Hubbell and Mrs. McDougal as efforts to increase the pressure on them to provide embarrassing information about the Clintons.
"In both instances he seems to be wielding the hammer of Thor to swat at mosquitoes," said Richard Ben-Veniste, a Washington lawyer who has represented prominent Democrats and was a Watergate prosecutor and Senate minority counsel. "Judge Robertson's action will give further credence to the critics of Starr that he has been overly aggressive in pursuing individuals who would not otherwise be prosecuted, simply to be able to get some information from them that he can use against President and Mrs. Clinton."
Benjamin Ginsberg, a litigator at Patton, Boggs & Blow, disagreed.
"This is what prosecutors do," Ginsberg said. "Hubbell was a key source of information who was reluctant to talk. It was a pressure point that Starr was applying."
In a dramatic act of defiance, Hubbell and his wife appeared outside their home on the day of the indictment as Hubbell declared, "The independent counsel can indict my dog, they can indict my cat, but I'm not going to lie about the president." Mrs. McDougal also used strong language after her indictment on May 4, saying, "It is true that no man is above the law, but neither should any man be asked to break the law in order to buy his freedom."
If one of Starr's points in pursuing Hubbell and Mrs. McDougal was to win a war of wills against them, he appears to have lost. Hubbell, declaring himself "grateful" for Wednesday's decision, is out of Starr's sights for the time being. And Mrs. McDougal, enjoying freedom after another federal judge granted her release last month on health grounds, faces trial on the contempt charges in the fall. But she has repeatedly said she will not tell Starr anything.
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