AT LAW
My Job
What Bill Clinton left out of his memoir.
The last American president of the 20th century has now told in elaborate detail his remarkable story. At its best, his book, "My Life," not only demonstrates the great natural gifts and steely determination of its subject, but points more broadly to the greatness of the country itself. Ours is the opportunity society, Bill Clinton's story reminds us. It is the revolutionary society insisting on the inalienability of fundamental, God-given rights, including the pursuit of happiness. For Bill Clinton, that pursuit found ambitious expression in childhood dreams of reaching the pinnacle of American politics.
Along with its high optimism, the story told by the nation's 42nd president has a decidedly unhappy dimension. Its pages brim with bitter reflections on the source of that unhappiness--the selection of a court-appointed prosecutor in the Whitewater investigation. That prosecutor, we are reminded, replaced an earlier, highly distinguished prosecutor, Robert Fiske, who had been chosen in early 1994 by President Clinton's own attorney general, Janet Reno, to investigate the matter. Mr. Fiske should have continued to serve, the argument goes, especially since (in the author's view) there was essentially nothing of substance to investigate in the first place, given that he and the first lady had lost money on the Whitewater investment. Therefore, Mr. Clinton concludes that the entire investigation became a tale of partisan politics.
It was my task to complete the investigations begun by Bob Fiske, whom Ms. Reno had appointed during a period when the independent counsel law had lapsed. A three-judge panel appointed me pursuant to a 1994 law, which Mr. Clinton himself signed, that re-established the office of independent counsel. The sad and undisputed facts revealed by those investigations scarcely need retelling. Numerous criminal prosecutions and convictions dotted the legal landscape, including the conviction (and resignation) of a sitting governor of Arkansas; the convictions of Jim and Susan McDougal, business partners in Whitewater; and the guilty pleas of, among others, a former associate attorney general of the U.S. (and chief justice of the Arkansas Supreme Court).
The crimes were ferreted out through the hard work and professionalism of men and women from the FBI and the IRS, the honorable service of honest citizens serving on grand juries in Little Rock, Ark., and Washington, and, finally, through the courageous and sacrificial service of (largely career) prosecutors. Many of those prosecutors in both Little Rock and Washington were on assignment to our office from U.S. attorneys' offices around the country and from "Main Justice," the Justice Department itself. Two boasted the Department of Justice's highest award for career prosecutors. These men and women were honest, hardworking, law-abiding public servants.
At various turns in the investigation, witnesses and defendants mounted legal challenges to the independent counsel's authority to investigate possible criminal activity. In every instance, those challenges were rejected either by a federal district court or by a court of appeals. The reason: In every instance the investigation was properly authorized under the independent-counsel law.
On the Washington front, Attorney General Reno more than once expanded the work of our office, including the examination of the FBI Files matter and the White House Travel Office firings. Finally, based on hard evidence, Ms. Reno sought an expansion of our office's authority to examine whether crimes, such as subornation of perjury and obstruction of justice, were committed in connection with the Federal District Court civil sexual-harassment lawsuit brought against the sitting president.
Six years later, the factual findings of our office's referral to the House of Representatives stand unrebutted. Those findings not only were accurate, they triggered profound concerns as to the basic integrity of witnesses, including the president himself, in the administration of justice. The result included an outgoing president's written recognition of his responsibility to our justice system, imposition of sanctions by a federal judge, and a suspension of his law license for an extended period.
The lessons learned from this unhappy history go far beyond the bedrock need for basic honesty on the part of our public officials. A less obvious lesson is the vital importance of integrity in our structural arrangements at the Founding. As in buildings, architecture counts when it comes to government. The entire independent counsel experiment, launched in the wake of Watergate, was a noble idea, but it tugged at our architecture in the form of basic principles of separation of powers. Prosecutors should be accountable within the executive branch, not left to languish outside the tripartite system of government.
This lesson was not unknown. The Justice Department under Ronald Reagan took a long and careful look at the special prosecutor law (as it was then called) in the early 1980s and determined that the law both was unconstitutional (violating separation of powers) and reflected bad policy (the diminution of responsibility and accountability). The best way to ensure vigorous enforcement of the law, the department concluded, was to restore the time-honored tradition of a special prosecutor being chosen not by courts, but by the attorney general when the president or other high-ranking officials were accused of criminal conduct. That way the prosecutor enjoys day-to-day independence, as did Robert Fiske, but still remains ultimately accountable to the attorney general.
Mr. Clinton glosses over this enduring lesson about the role of the independent counsel, as well as sliding by many of the investigation's undisputed findings. His epic-length reflections sweep aside not only the flinty facts, but the vital importance of history and tradition in our constitutional architecture. That impoverishment in the presentation reinforces the unfortunate sense that only personalities and (alleged) motivations count in modern public life, when in truth, it is the integrity of ideas and principles that have lasting consequences.
That is why we as a nation, over two centuries later, remembered once again not only Independence Day itself, but the ideas at the Founding given powerful voice by Thomas Jefferson when he and the other signers of the Declaration of Independence pledged to each other their lives, their fortunes and their "sacred honor." These principles, more fully anchored in the Constitution, the Bill of Rights and the post-Civil War amendments, have stood the test of time and will extend far beyond our own passing age of celebrity.
Mr. Starr, a Washington lawyer and former independent counsel, is the dean designate of the Pepperdine Law School.
