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>From http://arktimes.com/reporter/020628reportera.html
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Kenneth Starr, ethics-buster
Private pleader and public prosecutor simultaneously, the Whitewater man blazed a
new and frightening trail.
By Doug Smith
June 28, 2002
"I'm the local sheriff. I have reason to believe that you have committed a crime. I
put a gun to your head, a common and respectable practice for law enforcement
officials in these parts when they encounter suspected criminals. You happen to be
the town's mayor. I'm investigating you for alleged corruption, for skewing your
official decisions for personal gain and then covering up your actions.
"Just then, the postal carrier arrives and hands you your mail. One of the letters you
have received is, coincidentally, from me, on the stationery of my law firm. You will
recall, Mr. Mayor, that being sheriff is only a part-time job; the rest of the time
I'm a
corporate lawyer. The letter says that I represent frontier.com, that my client is
seeking regulatory relief from Town Hall, and that we really deserve your help. With
my weapon pressed to your skull - for reasons, of course, wholly unrelated to
frontier.com's request - you read my eloquent plea on behalf of my client."
That is David Halperin, explaining - better than anyone has - how Kenneth Starr
operated.
"Long before his probe of alleged misconduct in Arkansas was eclipsed by his
investigation of the Monica Lewinsky matter, Starr blazed a new trail on our nation's
legal ethics map," Halperin writes. "For four years, from his August 5, 1994,
appointment as independent counsel to his July 31, 1998, announcement that he
would take an unpaid leave of absence from his position as a partner in the law firm
Kirkland & Ellis, Starr pressed the interests of private clients in numerous high-
stakes legal matters, many involving the participation or interests of the Executive
Branch of the United States Government, while conducting a criminal investigation
of, among others, the head of the Executive Branch, President Clinton."
Halperin's article "Ethics Breakthrough or Ethics Breakdown? Kenneth Starr's Dual
Roles as Private Practitioner and Public Prosecutor" appeared last month in the
Georgetown Journal of Legal Ethics, published by the students of the Georgetown
University Law Center in Washington. Halperin is a lawyer and executive director of
the American Constitution Society for Law and Policy in Washington, though he
stressed in an interview that the article was unrelated to the Society.
Halperin believes there was a breakdown, and that Starr violated existing codes of
legal ethics. But whether he did or didn't, laws should be enacted to prevent any
other special prosecutor from doing what Starr did, Halperin says. He would bar
special prosecutors from doing private legal work while they're serving as
prosecutors.
"Although many of the federal independent counsels or special prosecutors
appointed since the 1970s continued to engage in private practice while conducting
their probes, all of the other counsels whose mandates included investigation of
conduct by the president - Watergate prosecutors Archibald Cox and Leon Jaworski,
Iran-Contra counsel Lawrence E. Walsh, Starr's Whitewater predecessor Robert B.
Fiske Jr., and Robert W. Ray, who replaced Starr in October 1999 - chose not to.
And no independent counsel had simultaneously pursued a private law practice
touching on so many high-profile and important federal policy matter as did Starr's."
Here are a few examples; Halperin's article has more:
· In January 1993, in its last week in office, the Bush administration scrapped a
policy that prohibited former senior Justice Department officials, for a period of one
year after they left office, from litigating in cases where the Justice Department also
represented a party. The change benefitted people like Starr - the solicitor general
under Bush - who were preparing to re- enter private practice. Three months later,
Bush was representing Bell Atlantic Corp. in a suit challenging a federal law, and
the Justice Department was defending the suit. Bell had filed the suit while Starr
was still at the Justice Department. Meanwhile, the Clinton administration reinstated
the old policy about former Justice Department employees, and advised Starr that
he was in violation. After some resistance, Starr stopped signing briefs in the Bell
Atlantic case until the one-year anniversary passed. In February 1996, after Starr
had been appointed special prosecutor in the Whitewater case, Clinton signed
legislation that effectively gave Bell Atlantic what it wanted, making the lawsuit
moot.
"By taking advantage almost immediately of a new and untested ethics
interpretation, an interpretation implemented at Justice in the final days of
Republican control of the Department - implemented by outgoing officials who stood
to gain career opportunities from the change in policy - Starr showed a willingness
to test the boundaries of ethical conduct in order to engage in representation of
private clients," Halperin writes.
· In 1994, while Starr was Whitewater prosecutor, he defended General Motors in
lawsuits over GM pickup trucks. In one case, he persuaded the Georgia Supreme
Court to reverse a $105 million verdict for the family of a 17-year-old boy killed
when his pickup burst into flames after a collision. At the same time, another
member of Starr's law firm filed suit to stop Clinton's Transportation Department
from a proposed recall of GM trucks. The firm also lobbied against the recall. In
December 1994, the Transportation Department canceled the proposed recall in
exchange for GM's commitment to provide between $21 million and $51 million for
auto safety programs.
· In 1996, while he was Whitewater prosecutor, Starr argued an antitrust case before
the Supreme Court on behalf of a group of National Football League players. In
briefing and oral argument, Clinton's solicitor general urged the Court to rule in
favor of Starr's clients. The Court ruled against Starr 8-1.
· "Starr emerged as one of the key lawyers for the tobacco industry as it faced the
most aggressive government challenges in its history . . . Thus the Clinton
administration was left to consider the proposed nationwide settlement of cigarette
liability and regulatory issues knowing that Kenneth Starr, the powerful Whitewater
prosecutor, was on the side - and the payroll - of the tobacco companies."
"Starr's apparent conflicts might have been somewhat more defensible had he
made his private practice work an open book, fully informing the public and allowing
the public to decide whether the arrangements were appropriate," Halperin writes.
"But instead, Starr acted in a manner that concealed some of the facts regarding his
private practice work. . . . though Starr retained an in-house ethics expert, he
limited
the scope of that expert's review. In addition, Starr took advantage of what appears
to be an unintended loophole in the Ethics in Government Act to avoid listing his
private clients on his annual disclosure forms."
Starr apologists like to say that he was "demonized," subjected to extensive and
unfair criticism. Halperin says instead that complaints about Starr's ethical conflicts
were "scattered, often muted, largely passive, and, in the judgment of this author,
came from far fewer quarters than the situation demanded." He notes that the one
person who filed formal ethics complaints against Starr, Francis T. Mandanici, a
Connecticut lawyer, was severely chastised and threatened with disciplinary action
by federal judges. (Republican-appointed federal judges, although Halperin doesn't
say so. Starr is an ardent Republican, and questions were raised about his partisan
connections. Halperin discusses some of those, but he believes the commercial
interests were the larger problem.)
"Why was there not a broader and more sustained reaction against Kenneth Starr's
conflicts of interest, particularly among leaders and members of the bar?" Halperin
asks. He suggests possibilities:
Starr was perceived as "a good, moral man, who can be entrusted with temptations
that might ensnare others." Many fawning newspaper articles were written about the
supposedly pious Starr.
Crossing Starr might have been considered bad for business. "Although I have no
proof, one could imagine a lawyer or two - in private practice or hoping some day to
serve in a Republican administration - who might have been loath to speak out
against Kenneth Starr's ethics for fear of the impact on his or her career. The
National Law Journal's Lawyer of the Year had a thriving practice with an ever-
expanding cast of corporate clients. … And given Starr's connections and prestige
within the Republican legal establishment, a lawyer who challenged Starr's ethics
might have feared that doing so would have jeopardized chances for a high-level
job in the next Republican administration."
Lawyers who practice in glass houses generally don't throw stones.
"The lawyers whose views would have mattered most, the members of Starr's own
legal niche - lawyers specializing in federal practice, in getting things done in
Washington - might have been loath to raise these issues for fear of opening up
larger questions about Washington's revolving-door legal and lobbying culture."
Halperin concludes: "A legal culture that accepted Kenneth Starr's dual performance
as private practitioner and public prosecutor is one in need of genuine self-scrutiny."
In a telephone interview, Halperin said there hadn't been a strong reaction to the
article. This is true of most articles written for law school journals, he said. "A
lot of
Clinton people said they liked it, and a lot of law professors." He hasn't heard from
any of the high-priced Washington lawyers in "Starr's own legal niche."
Starr's defenders will likely dismiss Halperin's arguments because of Halperin's
associations. Formerly a solo practitioner, he joined the Clinton administration in
1998 and was there for 31 months. He said he did most of the work on the
Georgetown Journal article before then, and did not work on it all while he was at
the White House. The new American Constitution Society for Law and Policy hopes
to do for progressive lawyers and law students what the Federalist Society does for
conservative lawyers and law students, Halperin said. (The Federalist Society is
funded by Richard Mellon Scaife, a shadowy right-wing billionaire who also funded
much of the anti-Clinton propaganda and litigation. Ethical questions were raised
about Starr's connection with Scaife, and raised loudly enough that Starr turned
down a Scaife-funded job after first accepting it.)
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