The impact of investigating the investigator
Critics say Reno's likely probe of Starr would do more harm than good.
WASHINGTON — Even if the independent-counsel law goes the way of the dinosaurs at the end of June, as US Attorney General Janet Reno this week told senators it should, it will have no effect on Kenneth Starr's $40 million investigation of Bill and Hillary Clinton.
But behind the scenes at the United States Department of Justice, plans that could have a profound effect on both his work and his legacy quietly continue, says a Justice Department source.
Expected to begin soon, a soup-to-nuts investigation of Mr. Starr's probe could include things such as the way Monica Lewinsky was handled and alleged illegal leaking of grand-jury testimony.
But with the independent-counsel law set to expire, legal experts are at odds over the appropriateness and public benefits of investigating Starr - a process potentially fraught with legal and political land mines.
"I think it's a danger," says John Douglass, a law professor at the University of Richmond in Virginia, who served under independent counsel Lawrence Walsh. "As much as I think what Starr did was unnecessary and inappropriate and not what most prosecutors would do, I'm troubled with the idea of investigating the investigator."
Perhaps most problematic is how an investigation would affect Starr's executive oversight status. Critics say the intrusive nature of an investigation could jeopardize his mandate, affect his final report, and even result in his dismissal.
"Right now [the Justice Department] is potentially involved in the same kind of excess that many blame Starr for," Mr. Douglass says.
Vagueness of statute
The problem Ms. Reno faces in deciding whether to investigate Starr stems from the independent counsel law itself. It does not assign responsibility to any office or agency when malfeasance by the investigator is alleged. It simply gives the attorney general the authority to dismiss an investigator with good cause.
This week, Reno told the Senate Governmental Affairs Committee that her decision to no longer endorse the independent-counsel statute came after several of her seven independent-counsel appointees were "plunged into the political process."
But ending the law or launching an investigation into the investigator is seen by many as politically untenable.
"It will always be extremely difficult for any attorney general to exercise the authority to investigate, let alone remove an independent counsel," said Deputy Attorney General Eric Holder Jr.
But others believe that due to the law's sparse use and gravity of some of the allegations against the Starr team, Reno is justified in launching an investigation.
"There is a real political check on irresponsible or intimidating use of that power," says Julie O'Sullivan at Georgetown University School of Law here. "It is usually going to be perceived as an attack on the [Office of the Independent Counsel]."
Adding momentum to a potential investigation against Starr is the revelation that he asked the Justice Department to look into charging his former spokesman, Charles Bakaly III.
The allegation is that Mr. Bakaly leaked politically damaging information about President Clinton, then lied about his actions to investigators.
Chief US District Court Judge Norma Holloway Johnson has allowed an investigation of the Starr camp for allegedly leaking confidential grand-jury testimony to the press. That investigation will determine whether criminal contempt proceedings should begin against Starr.
Larger concerns over who's in charge of watching the watchman have persisted since the statute's creation. Calls for independent-counsel oversight were raised a decade ago during the seven-year, $47 million Iran-contra probe, the largest independent-counsel investigation ever.
Like Starr, Mr. Walsh won many convictions - a total of 10. But his investigation into whether the Reagan administration sold arms to Iran, funneling the money to anticommunist contra rebels in Nicaragua was decried as partisan and he as a runaway prosecutor. At the time, Sen. Bob Dole (R) of Kansas asked the Justice Department to conduct an investigation of Walsh, but in vain.
How much public support is there today for launching a probe against Starr?
"[Reno] doesn't care," says Republican pollster Frank Luntz. "There is no public sentiment for further investigation of this ... but her numbers and credibility have not been great for a long time."
After subtracting politics and personality, some see an ancillary benefit to launching a probe as Congress reassesses the age-old problem of executive oversight.
"Understanding how this special prosecutor behaved ... would provide invaluable information about how the government should deal subsequently with highly sensitive political prosecutions and investigations" in the future, says Peter Shane, separation of powers scholar and law professor at the University of Pittsburgh Law School.