An excellent compendium of Starr's foibles and pratfalls from the pages of Salon:
Mistakes were made
-----------A close reading of the Starr Report shows that
-----------the independent counsel cut several legal corners too
-----------many when laying his impeachment trap.
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BY GENE LYONS
Rep. Henry Hyde assures
the American people that
the impeachment inquiry of
President Clinton will
demonstrate that "no
person is above the law,
nor beneath the law." In
the next breath, however,
Hyde insists that there will be "no investigation of
the investigation" -- no inquiry, that is, into the
motives and methods of independent counsel
Kenneth Starr. These goals are in hopeless conflict.
If Clinton can't question how Starr's evidence
against him was gathered, he'll have been denied
what the Constitution defines as "due process of
law," his basic right as an American citizen.
In an editorial, the New York Times also endorses
the idea that the president has fewer rights than the
rest of us. The Starr Report buried Monica
Lewinsky's testimony that Clinton never asked her
to lie, nor did he promise her anything to keep their
affair a secret. Starr's decision to ignore these
valuable bits of exculpatory evidence are dismissed
as "legal klutziness," by the Times, which
concludes that this "does not add up to
prosecutorial misconduct. The impeachment
process is not governed by the rules of criminal
law."
Klutziness implies clumsiness. Are we to believe
Starr left out Monica's direct denial of the central
premise of his investigation by some sort of clumsy
accident? In probing Clinton's sex life, the Times
says, Starr was merely following orders, "as an
officer of the court, operating under Justice
Department aegis and the supervision of three
federal judges."
But what if Starr obtained his authority to
investigate the Lewinsky matter by illegitimate
means? What if corners were cut, falsehoods
disseminated and laws broken in a manner
decidedly more sinister than klutzy? Would that
matter? Because the evidence of all of this is there,
much of it in the Starr Report itself, although it
does require very careful reading to dig it out.
According to what has been presented to the public,
Starr offered four main pieces of evidence to
Attorney General Janet Reno and the three-judge
panel in order to get the original OK to expand his
Whitewater inquiry into the sex scandal. We now
know that there is something critically wrong with
each one of the four pieces:
1. Starr argued that Vernon Jordan's effort to find
Monica a job resembled his Whitewater "hush
money" investigation of Webb Hubbell, and
therefore represented a possible criminal pattern.
Trouble is, Starr indicted Hubbell for tax fraud (an
indictment since dismissed) precisely because he
never found real evidence of "hush money."
Suspicion isn't evidence. If it were, Starr's
investigation would have no legal boundaries
whatsoever. According to Brill's Content, the OIC
may also have withheld exculpatory information
from Janet Reno: Specifically, that Jordan's efforts
began long before Monica was subpoenaed in the
Jones case, and that Jordan was an old friend of
Monica's mother's fiancé, Peter Straus, and
therefore may easily have had innocent reasons for
helping Monica find a job.
2. Linda Tripp's tapes were recorded illegally,
hence could probably not be used as evidence in an
American court. Even more worrying, the Starr
Report clearly states that two crucial phone
conversations recorded by Tripp on Thursday, Jan.
15 -- two days after the FBI wired her lunch
meeting with Monica, and one day before Starr
received permission to proceed from the
three-judge panel -- "were made under the
supervision of the Office of the Independent
Counsel." The report says the tapes, designated
"Tape 22," show Monica telling Tripp that she and
Clinton [would] tell the same story under oath -- a
crucial bit of evidence, if true.
Tripp had previously been told by her lawyer Kirby
Behre that surreptitiously recording phone calls was
a felony in Maryland. Granted immunity by Starr
on Jan. 12, she was then advised by the OIC to do
some more taping on Jan. 15. In brief, she was
acting as the OIC's agent. Did Starr have authority
from the judges? He did not. Does any federal
prosecutor have authority to deputize a civilian to
violate a state law? Again, no. This is KGB
territory.
So how can Starr's team have been so reckless as
to print the evidence in their report? Maybe they
were gambling that the report would force President
Clinton to resign. Also, to put this thing together,
it's necessary to read footnote 1020, then follow its
cryptic reference to "T-22" into Volume II, page
262, for the date and disclaimer. (I'm indebted to
Jack Gillis of the University of Southwestern
Louisiana for this research.) The issue takes on
added significance in view of another footnote
accusing Tripp of doctoring certain tapes and
dubbing others.
3. Then there are the "talking points." Long
presented as the "smoking gun" that would prove
White House malfeasance, this document was
actually written by Lewinsky herself at Tripp's
urging. According to Monica's testimony, also
discreetly edited in the Starr Report, Tripp phoned
her on the morning of Jan. 14. Tripp told Monica
that she was meeting her attorney Kirby Behre later
that day, and asked for help in composing an
affidavit.
The call was a setup. Unknown to Monica, Tripp
had actually fired Behre on Jan. 9, and hired
conservative lawyer James Moody. After sweating
over a hot word processor all day, Lewinsky met
Tripp after work in a Pentagon parking lot and
handed her the so-called talking points. Their
contents reflected Tripp's stated incredulity about
Kathleen Willey's charges against Clinton. Also
unknown to Monica, Tripp then took the document
directly to Starr. The OIC immediately called
Assistant Attorney General Eric Holder on his cell
phone at a the Washington Wizards pro basketball
game, setting in motion the process that gave Starr
his investigative authority.
In short, the talking points never were evidence of
anything except Tripp's deviousness. Yet for
months they were treated like the Rosetta Stone.
Did Starr ask Tripp to produce better evidence?
Did he ask her how she got them? He had to. If she
lied, that's a crime. If she told the truth, yet Starr's
team encouraged the Justice Department and Janet
Reno to believe that the talking points were
something they weren't, wouldn't that be
prosecutorial misconduct? Given that Monica
would almost certainly have asked Tripp on Jan. 15
how the meeting with Kirby Behre went, it's going
to be really interesting to see which tapes Tripp
edited.
4. In her Jan. 16 letter to the three-judge court,
Janet Reno wrote that Monica "may have filed" a
false affidavit, a statement that can mean three
things to a lawyer. Either an affidavit may have
been filed, may be false or both. Why such
vagueness? Because Starr appears to have been
making, and losing, another calculated gamble.
Lewinsky's lawyer Frank Carter had sent the Jones
lawyers a copy of her Jan. 7 affidavit on Monday,
Jan. 12. Carter informed them that unless he heard
from them by Jan. 15, he would file a motion to
quash her subpoena with Judge Susan Webber
Wright's court in Little Rock. On Jan. 16, he sent
the Jones lawyers a copy of his motion. That same
morning, in the apparent belief that Carter had filed
with the Little Rock court, Starr's newly
empowered agents grabbed up Lewinsky, held her
for 11 hours, refused to let her phone attorney
Carter, threatened her with 27 years in jail for
breaking federal law and tried to get her to wear a
wire (she says) into the Oval Office.
But the motion hadn't been filed. An affidavit has
no legal force until it's stamped by the court. Here's
what the Starr Report says: "On January 16, 1998,
Mr. Carter arranged for the overnight delivery of
the motion to quash and the accompanying affidavit
to Judge Susan Webber Wright's law clerk and
Paula Jones' attorneys (1027)." Read the footnote,
and there's another surprise. Starr's team may not
have known it, but Little Rock courts don't accept
faxed motions. The courthouse is closed weekends.
Monday, Jan. 19, was a federal holiday. Thus the
footnote: "Although the motion (and affidavit)
reached the Judge's chambers on January 17, the
file stamp date was January 20, 1998."
In picking up Monica, Starr's zealous prosecutors
jumped the gun by five days; a [probable] mistrial
in any federal court in America. Follow the
document reference in footnote 1027 to document
number 921-DC-0000775, and what do you find?
Well, no document. It's simply not there. But the
documentary Table of Contents lists the source as
the Campbell Law Firm, Paula Jones' lawyers. So
how does a document provided to Starr by the
Jones lawyers prove that Monica's affidavit reached
Judge Wright's chambers on Jan. 17? It doesn't.
We know that Judge Wright saw the Lewinsky
affidavit on Jan. 17, because Clinton attorney Bob
Bennett produced a copy during the president's
deposition. But how on earth did Starr's
prosecutors know on Friday, Jan. 16, that Carter
had sent it? Much less what was in it? On Linda
Tripp's and the FBI's tapes, Monica was still saying
she'd sign nothing until she had a job. (A lie, she's
since testified.) That leaves only one possible
source: the Jones lawyers, a clear violation of Judge
Wright's stringent gag order, and possible evidence
of collusion.
And what was the big hurry on Jan. 16? Why not
wait until the affidavit was legally filed with the
court? Simple: Starr's prosecutors had to spring
their "impeachment trap" before Clinton testified
and before Newsweek published, or lose the whole
thing. Combine all this with Linda Tripp's briefing
of the Jones lawyers on Friday, Jan. 16, and what
emerges is the disturbing impression of a legalized
coup attempt. Are the American people prepared to
countenance that?
SALON | Oct. 5, 1998
Gene Lyons is a columnist for the Arkansas Democrat
Gazette and the author of "Fools for Scandal: How the Media
Invented Whitewater" (Franklin Square Press). He is a
frequent contributor to Salon. |
