A Vast Conspiracy (16 page)

Fiske, in turn, also started out the right way. He announced he was taking a leave from his firm and moving to Little Rock. He hired a team of seasoned prosecutors, and when he gathered the group together for the first time, he had two words of advice for them: “Lawrence Walsh.” By that he meant that he was not going to repeat Walsh’s mistakes. He was not going to bring marginal cases, he was not going to see his investigation politicized, and most of all he was not going to take seven years. They were going to work fourteen hours a day seven days a week, determine if there were any crimes to prosecute, bring their cases, and then go home.

At the press conference with Reno announcing his appointment, Fiske had said he was going to investigate the death of Vince Foster as well as the Whitewater land deal. Foster’s death had become a mainstay of the right-wing-conspiracy industry—Pat Matrisciana did an entire documentary on the subject—but Fiske didn’t waste any time reaching a conclusion. In a report released on June 30, 1994, six months into his tenure, Fiske said that Foster had indeed committed suicide. By coincidence, that same day, President
Clinton signed the reauthorization of the independent counsel statute. Almost as a formality, Reno sent a request to the three-judge Special Division to ratify her appointment of Fiske as special prosecutor in the Whitewater case. Fiske had an impeccable reputation, his investigation seemed off to a promising start, and there was no reason to think the court would want a new prosecutor to start from scratch.

The independent counsel law contained essentially no provision for how the prosecutors were to be selected. The law simply left the decision up to the Special Division. Yet these judges were almost intentionally ill-suited to the task. For one thing, the law called for appeals court judges to serve on the Special Division. Prosecutors and defense lawyers practice mostly before trial court judges, so the Special Division was unlikely to have any firsthand knowledge of the skills of the people they appointed. The Special Division judges were also supposed to be old—by law. The statute called for the appeals court judges to be “senior,” that is, semiretired. But older judges were even less familiar with the talent pool than their younger colleagues. The law had no provision for standards, for applications, for judicial review of the hiring decision, or for public disclosure of how or why any appointment of an independent counsel was made.

So there was no warning from the Special Division of the action it would take on August 5, 1994. On that day, the Special Division rejected Reno’s request to appoint Fiske as independent counsel. Instead, the three judges fired him and replaced him with Kenneth W. Starr as the new prosecutor in the Whitewater case. In its brief statement accompanying the change, the three-judge court stated, “It is not our intent to impugn the integrity of the Attorney General’s appointee, but rather to reflect the intent of the [Independent Counsel] Act, that the actor be protected against perceptions of conflict.” Thus, in Washington’s endless loop of perceived and actual conflicts of interest, Fiske was both hired and fired to avoid conflicts of interest.

Because the appointment process of independent counsels was kept from public view, only one fact became publicly known about how the Special Division came to replace Bob Fiske with Kenneth Starr. An anonymous eyewitness told
The Washington Post
that on July 14, Judge David Sentelle had lunched at the Capitol with both of the senators from his home state of North Carolina—Jesse Helms and Lauch Faircloth. Both
Helms and Faircloth were ferocious critics of the president’s, especially on Whitewater, and Faircloth in particular had argued that Fiske had gone too easy on the Clintons. The timing of the lunch suggested that the senators were lobbying Sentelle to dump Fiske—which the judge promptly did. All three participants issued denials that they had discussed the Whitewater case at all during the lunch. According to Helms, they had talked of “Western wear, old friends, and prostate problems.”

In fact, behind the scenes, the three-judge panel was engaged in a decorous struggle over the Whitewater independent counsel—one that, again, revealed the political roots of this fight. Sentelle and Judge Joseph Sneed, who were both Republicans, wanted Fiske replaced with Starr. They thought the appointment by Reno had fatally compromised Fiske, giving his continued supervision of the case the “appearance of impropriety,” but they saw no such problems with appointing an outspoken Republican opponent of Clinton’s like Starr. John Butzner, the one Democrat on the panel, believed there was no need to replace Fiske, a man of impeccable credentials and impartiality. If someone new had to be brought in, Butzner favored naming a former federal appeals court judge named John Gibbons, who agreed, as did Starr, to be interviewed for the job. But when Gibbons came to Washington to meet with the judges, he said that he felt he had a conflict of interest because he was involved in an unrelated case in which the firm of White House counsel Lloyd Cutler had also appeared. It was a remote conflict, far less dramatic than the many instances where Starr’s political and personal agenda had clashed with Clinton’s. But with Gibbons out, Butzner had little choice but to go along with the offer to Starr—who accepted with alacrity.

Within a few days of his appointment, Ken Starr gathered Fiske’s prosecutors around a conference table in their offices in suburban Little Rock. Fiske had staffed the case leanly, hiring fewer than a dozen lawyers, mostly people he had known from the U.S. Attorney’s Office or Davis Polk. Starr, who had never met any of them before, began by noting the awkwardness of this first meeting. He said he understood their loyalty to, and affection for, Fiske.

“I love this man,” Starr said of his predecessor.

The remark only increased the fury that several of the Fiske lawyers already felt toward Starr. The Whitewater prosecutors believed that Fiske
would conduct a fair and thorough investigation. They regarded the Special Division’s act as an abomination, an unjustified slap at a decent and honorable man. By accepting the job, Starr had made himself party to the hijacking of their work. They wanted no part of anyone who would have done such a thing.

But there was another reason the prosecutors were angry. In the days before he was fired, Fiske had told his staff that he was considering hiring an outside lawyer to handle some appeals on behalf of the office. Under his charter from Reno, Fiske had the right to file civil suits against the president, and the prosecutor knew that Clinton was claiming, in the Paula Jones case, that he was immune from being sued. Fiske told his staff that he was talking with the lawyer who had been so outspoken against Clinton on the issue of presidential immunity in the Jones case—a fellow named Ken Starr. In other words, at the same time that Starr was negotiating with Fiske about handling appeals, Starr was also talking with the Special Division about taking Fiske’s job. Starr had never disclosed to Fiske that he had been approached by the Special Division, and Fiske’s staff regarded this omission as a particular betrayal. “I love this man,” indeed.

But Fiske had promised that he and his staff would assist Starr, so they began briefing the new independent counsel on the progress of their investigation. They had progress to report on two fronts. Earlier in 1994, Webb Hubbell, the associate attorney general, had resigned amid charges that he had overbilled his clients and defrauded his partners at the Rose Law Firm, where he and the first lady had worked before Clinton’s election. Fiske’s lawyers said that Hubbell was ready to plead guilty and cooperate with the Whitewater investigation. Second, the lawyers said they were making good progress on the case at the root of most of the Whitewater stories in the press—the one based on David Hale’s fraudulent $300,000 loan to Susan McDougal, who with her husband, Jim, were the Clintons’ partners in the original Whitewater project. (Fiske had already worked out a plea-bargain deal with Hale himself, meaning that the former judge and church pew entrepreneur had gotten what he wanted out of the appointment of a special prosecutor.) The idea behind all of Fiske’s actions was the same simple notion underlying most investigations of white-collar crime. The prosecutors would convict these lesser figures and then offer them leniency if they would testify against higher-ups, specifically the president and first lady.

“We won’t write our 5K letters until we see whether these people cooperate,” one of the lawyers said to Starr.

“What’s a 5K letter?” the new independent counsel replied.

There was really no reason Starr should have known about 5K letters, but the prosecutors were stunned nonetheless. Since the federal sentencing guidelines went into effect in 1987, judges have had much less leeway to set the length of prison terms in cases before them. The guidelines determine the sentences, unless prosecutors make a motion to reduce the prison terms under guideline section 5K1.1. These motions—known as 5K letters—are the way prosecutors reward cooperators. By 1994, they were as familiar to criminal lawyers in the federal courts as speed limits were to highway drivers. But until he was hired by the Special Division to investigate the president of the United States, Starr had never prosecuted or defended a criminal case. So the prosecutors explained 5K letters to him. As Starr was the first to acknowledge, he would need a lot of help from his staff.

Much later, Kenneth Starr became one of the most reviled men in America when his opponents in the Clinton White House succeeded in defining an indelible public image of the man. He was Babbitt with a badge—a minister’s son from San Antonio who shined shoes for fun as a kid, jogged to the cadence of hymns as an adult, and then called down legal hellfire and brimstone as a prosecutor. In one of the impromptu press conferences that Starr liked to give in the driveway of his home, in McLean, Virginia, he compared himself to Joe Friday, but his awkward public manner could scarcely have differed more from the just-the-facts-ma’am
Dragnet
detective’s. Unable to talk about the evidence in his job as independent counsel, Starr instead offered pious lectures. “There’s no room for white lies. There’s no room for shading,” he said, standing in his driveway. “You cannot defile the temple of justice.”

In fact, Starr did fit an archetype, but it is neither Joe Friday nor Inspector Javert. Starr was a consummate Washington careerist who navigated the capital more by self-interest than by ideology. His defining attribute—more important even than his piety (which was real), his intelligence (which was considerable), or his energy (which was phenomenal)—was his ability to attract powerful mentors. In 1975, he clerked for Chief Justice Warren Burger. Then he spent four years in the law firm of President Reagan’s first attorney general, William French Smith. In 1983, when Starr was just thirty-seven years old, Burger and Smith engineered
his appointment to the United States Court of Appeals for the District of Columbia, the second-most-important court in the nation.

On the court, Starr had a chameleon-like ability to mix with every faction and clique. Once, after an oral argument in the courtroom, Starr found himself in the middle of a real argument between liberal and conservative colleagues, who looked like they might come to blows. “When we went into the robing room after the argument, Judge [Laurence] Silberman and I got into a famous contretemps. We really got into it, and he threatened me with bodily harm,” Abner Mikva, who went on to become White House counsel, recalled. “The whole time, Ken kept looking at the ceiling. You could see it was like he was saying to himself, ‘I’m not here. I’m not seeing this.’ He was a gentle person who looked to avoid controversies.” In 1989, President Bush persuaded Starr to step down from his lifetime judicial appointment and become solicitor general—the government’s chief advocate before the Supreme Court. Nicknamed the Solicitous General for his deferential style in front of the justices, Starr argued for a series of conservative positions, particularly on abortion and affirmative action. Yet Starr, like Bush himself, never convinced the hard-core right that he was one of them. In 1991, he lost out on an appointment to the Supreme Court because conservatives in the Justice Department branded him a “squish”—an unreliable conservative. (The seat went to Clarence Thomas instead.)