Starr A Reassessment by Benjamin Wittes Yale University Press, 256 pp., $24.95 Final Report of the Independent Counsel Regarding Monica Lewinsky and Others by Robert W. Ray United States D.C. Circuit Court of Appeals, March 6, 2002 FALSEHOOD has never been popular, exactly, but there are those who admire it. If shadows on a cave wall are all most people can perceive of reality, Plato thought, then they should at least be deluded in the right direction: A stable social order depends on the skill with which wise rulers justify existing political arrangements to their less enlightened subjects; in such a project, Plato advised, “honesty is for the most part less profitable than dishonesty.” In more recent thought, the ethical force underlying Plato’s argument has eroded–or been actively subverted. The truthfulness of a claim is irrelevant to its morality, Jeremy Bentham taught; what matters is only how the claim affects its audience. A few decades later, Friedrich Nietzsche–denouncing Bentham and other Utilitarians as “English flatheads”–would proclaim falsehood a positive virtue, superior to truth because lying “requires more spirit and will” to pull off. And today, more than a hundred years after Nietszche, most academic philosophy can’t quite make up its mind whether such a thing as “truth” exists at all. But Nietzsche’s postmodern followers don’t have much purchase in the world of daily affairs, and even Plato and Bentham seem a bit much to swallow whole. An entirely separate impulse of Western civilization continues to hold sway in the average American’s moral imagination: an intense and persistent core of deontology–an ethics that judges words and deeds not by their practical results but by the extent to which they reflect a recognition and acceptance of duties. And one of those duties is invariably a duty to truth–which is something real, discernible, and good in its own right. Dishonesty is a sin, or the secular equivalent thereof. The only question is how intensely one is meant to despise it. In the Christian tradition descended from St. Augustine, lying is never less than wrong, although it may warrant pardon. In the high-Enlightenment rationalism of Immanuel Kant, on the other hand, lying is never less than wrong–and never pardonable, either. “Whoever tells a lie, however well intentioned he might be, must answer for the consequences, however unforeseeable they were, and pay the penalty for them even in a civil tribunal,” Kant wrote in a famously uncompromising essay of 1797–denouncing even those falsehoods told to protect a friend from murder. Every lie “always harms another,” he explained; “if not some other particular man, still it harms mankind generally, for it vitiates the source of law itself.” Truthfulness “in all declarations, therefore, is a sacred and absolutely commanding decree of reason, limited by no expediency.” Many of us would likely get off the boat before completing the journey from Augustine to Kant. But it is doubtless their sea and no other that we sail on. We do not teach our children to choose falsehood or honesty in equal measure–whichever seems required by shifting circumstance to achieve ends they deem desirable. Our bias, impelled by felt duty, is clearly for the truth. OF COURSE, certain questions remain: Which truths should be kept private? Which must be revealed, and to what extent, in the public square? At what point does public dissimulation exceed the bounds of public forgiveness? And, alternately, when does corrective public exposure become too much truth to bear? The answers are nowhere written down–or even much discussed at the level of general abstraction. And the news only rarely provides an arresting set of relevant specifics by which we may collectively test and clarify our intuitions. But it does happen every so often. And it happened here in the United States four years ago, during the Monica Lewinsky scandal. For much of 1998, President Clinton and his White House aides and private attorneys lied to the country with great Nietzschean spirit and will. And once the lie was exposed, Clinton’s most vocal civilian cheerleaders more or less applauded it as a noble lie, a pious fraud, something necessary to protect the higher moral excellencies of the president’s political movement. The men to whom the president had lied were unethical, deranged by religious extremism, or otherwise committed to the destruction of the sacred Third Way, and thus did not deserve the truth. Many ordinary citizens embraced this conceit in all its gnostic glory. Most, it seems safe to say, did not. A sizable majority of the country decided, instead, early in the Lewinsky controversy, that St. Augustine’s prescription was enough: They would deplore Bill Clinton’s falsehood and pardon him for it, too. And there the misfortune might have ended, with far less agony and upset, and none of that disgusting business about the cigar–but for Kenneth W. Starr. He had other ideas. He would be Immanuel Kant. STARR has more than once insisted, and there is no reason to doubt him, that had the president’s been only a private lie made public embarrassment, he would have thought it beneath notice. But the lie had been initiated in an official forum, a federal court, and had been seconded by Monica Lewinsky, in similar defiance of a formal oath, with the liar’s full knowledge and approval. Felonies were at issue, in other words–serious crimes; as a prosecutor, Starr believed he could not ignore them. His job was to vindicate the law: the criminal code’s provisions concerning perjury and obstruction of justice, the independent counsel statute that had authorized his investigation in the first place, and the corpus and meaning of American law generally. And doing so, at minimum, would require that Starr go after the evidence with a total and unflinching commitment. “My goal, above all, is to gather the facts,” he has since told Benjamin Wittes in one of a series of interviews conducted during research for Wittes’s new book “Starr: A Reassessment.” “I want the truth, and then along the way to be just and to be fair.” WITTES, an editorial writer at the Washington Post, thinks that what Ken Starr wants is wrong. “Placing fairness and justice in the service of truth,” he writes, “precisely inverts the normal prosecutorial approach, which sees fact-gathering as a means of securing justice.” Indeed, Starr’s “reified notion of the truth” is something “more typically the province of journalists and historians.” Worse, Starr’s practical application of this notion during the late stages of the Whitewater investigation and throughout much of the Lewinsky episode–his willingness to employ the FBI and a grand jury in pursuit of a Kantian demand for perfect truth–produced “genuinely terrifying results.” There was a “boundlessness and lack of perspective” on display in Starr’s performance as independent counsel like none other in the history of that sad institution. By operating in a spirit “alien to the search for reasonable doubt” on which American criminal law is grounded, Ken Starr alone “ensured his failure.” Equally harsh judgments have been leveled against Starr before, of course. Unlike the others, however, Wittes’s cannot be lightly dismissed. “Starr: A Reassessment” is a brilliant piece of work, really: simultaneously brief and wide in scope, accessible to the non-specialist and attentive to detail about some extraordinarily vexing statutory and constitutional questions. It is also the first systematic analysis of the events of 1998 to identify the essence of that battle correctly: a profound and irreconcilable conflict of vision over the proper place of truth in the constellation of American legal and political values. There is reason to believe–or perhaps “hope” is a better word for it–that Wittes has underestimated how much truth our judicial system demands from its officers. If so, he has overestimated his principal subject’s intellectual and temperamental eccentricity. But either way, Benjamin Wittes has fashioned the onl
y honest and formidable argument would-be defenders of Kenneth Starr have ever had to confront. THE BOOK’S most remarked-upon aspect will probably be the palpable indignation with which Wittes views all previous condemnations of the Lewinsky investigation and the impressive reservoir of sympathy he maintains for its leader, even as he is concluding that Starr “fundamentally misconceived” a professional responsibility of history-altering significance. Both individually and collectively, Wittes writes, the many poisoned arrows loosed at Starr these past few years “deserve little patience and do not hold up under serious scrutiny.” The suggestion that Starr was a sex-averse Puritan obsessive is “completely fanciful.” Evidence that Starr’s conduct of the independent counsel’s office was animated by partisan hostility to Clinton is “incredibly thin.” And there exists “quite simply, no evidence that Starr was acting in bad faith”–or at all unethically. To the contrary, Wittes sees Starr as a man of “earnest sincerity” working under “extreme pressures that made his job nearly impossible,” a man whose only reward was the “truly vicious campaign of defamation the White House organized against him.” Celebrity journalist Jeffrey Toobin, in his wretched, clip-job bestseller about the Lewinsky scandal, “A Vast Conspiracy,” made bold to label Bill Clinton “the good guy.” Benjamin Wittes calls Toobin’s sound-bite analysis “perverse.” The president, after all, “had committed crimes,” suffered “a pathological allergy to telling the truth,” and “consistently placed his own interest ahead of the public interest.” No, Wittes insists: Kenneth Starr remains “the only plausible protagonist for the story of the Clinton wars.” How, then, this “protagonist” might also have been “obtuse,” “maddening,” and “entirely wrongheaded” must obviously be a matter of considerable complexity. It is difficult to provide an adequate summary of Wittes’s book–or to criticize it fairly–for the same reason it must have been wickedly difficult to write. The author is arguing that Starr’s great mistake was an over-scrupulous concern to discover the “whole truth” of the allegations he’d been presented, a scrupulousness so exceeding the standard that prosecutors normally set for themselves as to defeat the basic purpose of American criminal law. Wittes is himself so scrupulous with the truth, however, that he obliges himself to qualify this argument at almost every turn. His effort to specify the precise moment at which Starr went off the rails is a case in point. THE FIRST two years of Starr’s Whitewater investigation were “traditional enough,” Wittes allows, and the multiple-count felony verdicts the independent counsel’s office secured against Arkansas governor Jim Guy Tucker and Jim and Susan McDougal in 1996 represented “prosecutorial accomplishment that was entirely justified and has, in retrospect, been significantly underappreciated.” Had Starr pocketed these convictions and closed up shop in late 1997, “people would today see his investigation very differently.” But Starr did not close up shop, because by then he had accumulated a large volume of circumstantial evidence implicating the president in criminal activity, and Susan McDougal was still withholding the grand jury testimony necessary to corroborate or rebut that evidence. Even after spending more than a year in jail for civil contempt of court, she would not talk. So Starr indicted her–again–for criminal contempt and obstruction of justice. In April 1999, a federal jury refused to convict. Wittes thinks the second McDougal indictment, though “lawful and ethical,” was “wholly out of proportion to the importance of the offense” and senseless, to boot: She was plainly determined never to cooperate, and she was already facing a lengthy prison sentence for the 1996 charges, so any new punishment imposed on her would have been purely symbolic. Starr’s decision to go ahead with it anyway was a bellwether in his OIC tenure, according to Wittes: the first clear indication–this was May 1998–that our protagonist was having “deep trouble accepting that he would not learn the truth about the issues at the core of his jurisdiction,” a malady that would thoroughly infect the remainder of the Lewinsky investigation, then four months old. And yet, Wittes conscientiously discloses a variety of reasons one might have to dispute this hypothesis. The Kenneth Starr who could not let go in May 1998, he concedes, was the same Kenneth Starr who had tried to let go more than a year before, with an abortive attempt to resign as independent prosecutor and accept a deanship at Pepperdine University. Moreover, the jury that eventually rejected Starr’s “wholly out of proportion” criminal contempt indictment of Susan McDougal may very well have wished to convict her, Wittes reports. Nine panelists had been firm on a guilty verdict, prosecutors later learned. But three dissidents had hijacked the jury room, refusing to consider the evidence and spouting partisan rhetoric about Starr’s vendetta against the president. I do not think Wittes much compromises the force or clarity of his argument by such candor, an admirable habit he maintains throughout the book. The world changed a very great deal in the fifteen months following the Pepperdine incident–Monica Lewinsky appeared, most pertinently– and it is no inconsistency for Wittes to suggest that Starr changed with it. And Wittes’s interpretation of the McDougal contempt trial speaks directly to his central contention. Those three rebellious jurists, he suspects, were moved by “an instinctive understanding that the Starr investigation was no longer chiefly pursuing justice.” The key word here is “justice.” Elsewhere in “Starr: A Reassessment” Wittes approvingly quotes U.S. district court Judge Gerald Lynch’s description of the circumscribed, almost self-abnegating ambition he believes appropriate in a federal prosecutor. A prosecutor’s goal is definitely not “the truth,” the judge says. A prosecutor’s goal is only to “decide whether an individual, at a particular moment in time, violated a very specific social norm without qualifying for any of a limited number of particular defenses, and subject to a standard of proof beyond a reasonable doubt.” Lynch’s use of the oxymoronic elasticism “very specific social norm”–precisely where we might expect to see a nice, hard word like “law”–is pregnant with meaning. For there can be no serious doubt that Susan McDougal violated the law, just as there can be no serious doubt, as Wittes repeatedly affirms, that William Jefferson Clinton violated the law during the course of the Paula Jones litigation. Here the suggestion seems to be that there are certain circumstances, involving certain people unquestionably guilty of certain crimes, in which prosecution nevertheless just wouldn’t feel right with respect to the prevailing “social norm.” And thus a search for truth about the not-to-be-prosecuted criminal’s misdeeds would be inconsistent with “justice.” This is not a principle to be mocked, necessarily. It is what we think while reading about Inspector Javert and the stolen loaf of bread in “Les Miserables.” It might even be applicable–though Wittes’s equanimity in the face of jury nullification is a bit unsettling–to Susan McDougal’s criminal contempt indictment. But, before 1998, would anyone have thought to conduct such a theoretical exercise in the context of multiple, serial felonies committed by a president–the man in whom our Constitution vests a singular responsibility to “take Care that the Laws be faithfully executed”? IT WAS for such crises that the late, unlamented independent counsel statute was invented. Wittes’s reading of that law, and his complaints against Ken Starr’s conception of it, will not go down easy for anyone disturbed by the question I’ve just posed. Wittes begins by discussing all the many ways such an “opaque and badly thought out” statute, by its very “structure,” fails to deter, even “subtly encourages,” the Prosecutor Who Would Be Kant–enticing him to refashion his office into “a kind of truth commission.” The indep
endent counsel is granted unlimited time and money to probe and ponder a single issue, inevitably a high-profile “scandal.” He is placed under congressional oversight and directed to report annually on his progress. Should he ever trip across “substantial and credible information” that might warrant impeachment proceedings against an executive branch officer, the independent counsel is required to report that to Congress, as well. And at the conclusion of his investigation, the prosecutor is obliged to write a comprehensive account of his office’s decisions. These reporting provisions, in particular, would at first glance seem hopelessly incompatible with Benjamin Wittes’s point of view. Any prosecutor called upon to explain himself will naturally want to do it well–will want to put as much “truth” as possible into his reports. All the more so if the report in question is an alert to Congress that it may wish to impeach somebody; no responsible official raises such a possibility casually. And, as Wittes acknowledges, if the prosecutor has been tasked to investigate the president, “for a specific crime he happened to be both guilty of and inclined not to confess,” then a giant national uproar–“unless the prosecutor simply backed down”–becomes almost impossible to avoid. But Wittes believes Ken Starr could and should have avoided a lot of it. Nothing in the independent counsel statute or its legislative history “explicitly describes any truth-seeking function,” he notes. So Starr, an avowed and longtime critic of the statute’s anomalous place in the constitutional balance of powers, should have been unusually sensitive to–and should have employed discretionary prerogative to mitigate–any unspoken truth-seeking incentive the law might have contained. Prosecutors prosecute; Congress impeaches; the twain should meet as little as possible. Wittes is perfectly blunt about what he has in mind here. It would have been “prudential” and “healthiest,” he writes, for Starr to invoke Section 595(c), the impeachment-referral clause of the independent counsel statute, at a “relatively low” evidentiary threshold and very close to the beginning of the Lewinsky drama. The resulting, quickie report would have been empty of comment or evaluation and would have included only the barest information necessary to raise credible suspicion of serious presidential wrongdoing (no cigar, for example). Then it would have fallen to Congress to piece together the truth and figure out what to do about it. Only Wittes does not suppose that Congress would have fully accepted this task. No elected politician “would ever have had the guts” to ask in public such crucial questions as Ken Starr’s prosecutors asked in the court-enforced secrecy of the Lewinsky grand-jury chamber. The questions were too yucky, the president was too popular, and the scandal itself was widely loathed. Journalists might have asked the essential questions, but lacking subpoena power they would surely have been refused the answers. And to the extent that the matter had been aired at all on Capitol Hill, any criminal case Ken Starr might still have been contemplating would have been irretrievably spoiled. In other words: The truth of the president’s perjuries would never have been revealed. There is something a little surreal, of course, about drawing policy conclusions on the basis of historical information that–according to those conclusions–you really oughtn’t have. The contradiction is highlighted to the point of absurdity in the final official report on the Monica Lewinsky investigation, released just this past week by current independent counsel Robert Ray. Ray has determined that evidence exists against Clinton “sufficient to obtain and sustain a conviction” for perjury and obstruction of justice. Ray has further determined that “a substantial federal interest would be served by the presentation of criminal charges.” Just the same, Ray has decided to drop the whole business, Clinton having already received “significant administrative sanctions for his actions.” And, finally, Ray has decided to take what seems to be a pointed and gratuitous slap at his predecessor, Kenneth Starr. “If any one lesson is to be learned from this Office’s experience,” Ray offers, “it is that a prosecutor can serve only one function–to seek justice under the criminal law. He or she cannot be, and should not be tasked as, an independent arbiter of ultimate truth.” Except that Ray is able to preen like this and announce Clinton’s guilt and munificently decline to try him for it only because Ken Starr did seek the “ultimate truth.” Which proved the guilt, which forced the administrative sanctions, which ensure that “the nation’s interests have been served.” The confusion of means and ends here is truly remarkable. We are very much in the land of Jeremy Bentham. ROBERT RAY is crude. But if the vastly more sophisticated and thoughtful Benjamin Wittes is correct about the ancillary status of truth in American law, then sophistication and thoughtfulness will not count for much the next time we confront felony allegations against a sitting president. We may not even have to bother resolving whether the allegations have factual merit. What will matter, first and foremost, is the sense we have in our gut: our sense about the president generally, and our sense whether his behavior, what little we know of it, is or isn’t consistent with this morning’s “social norm.” And Wittes may well be correct. For one thing, Robert Ray is not alone. They probably haven’t reflected on the issue even a fraction as hard as Wittes has, but a surprising number of well-known, respected prosecutors provide Wittes snappy quotations about their abject revulsion with Ken Starr’s truth-centered cosmology. One of them calls Starr’s a “bad–almost a crazy bad–reading of the law.” Wittes does not waste time consulting any prominent members of the criminal defense bar, which spends most of its billable hours attempting to conceal the truth. Nor does he bother to cite mainstream scholarship in international comparative law, where most analyses of “truth in law” begin. On balance, that scholarship is friendly to Wittes’s argument. European countries operating in the civil-law tradition employ an “inquisitorial” model of criminal procedure. It is structured, all the way through trial and sentence, as an inquest into the guilt or innocence of identified suspects and defendants. Plea-bargaining is comparatively rare; prosecution is usually automatic for everything we would call a “felony.” And a wide range of evidence is admissible; exclusionary rules have limited application. Moreover, parties to a criminal case do not control and present the evidence (except, to some extent, in Denmark and Sweden). Custody of the evidence, instead, rests with the judge–who not uncommonly may order the police to go fetch more of it until he is satisfied the record is thorough and dispositive. From a very early stage, the judge is dominant, and his mission unambiguous: Section 244(2) of Germany’s criminal procedure code, for example, assigns jurists an explicit responsibility to uncover the truth. Here in the United States, by contrast, we have transformed the English common-law jury trial, which in its fourteenth-century roots represented one of legal history’s greatest empirical innovations, into a hyper-adversarial, process-saturated contest of interpretation between prosecution and defense. The parties nearly always bargain a case to conclusion well before full adjudication. If they cannot come to terms, they continue their struggle in court, which hears only that evidence the prosecution and defense wish to be heard, subject to a bewildering array of mandatory restrictions and objections. The judge is passive, largely mute. The jury, which is not allowed to ask questions or even take notes, does the best it can. At least on its face, American criminal procedure would appear to render truth, at best, an aspiration. Whether this snapshot picture of our law and its many obvious truth-deflecting mechanisms bespeaks anything about fundamental principles is open to que
stion, however. Many of those mechanisms did not exist one hundred or even fifty years ago. And the Supreme Court has never conceded that what now exists is a system in which “truth” and “justice” are distinguishable goals. It has said the opposite, many times. A grand-jury investigation “is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.” Evidentiary exclusions are permissible only to the extent they serve a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” And “the basic purpose of a trial is the determination of truth.” It might be objected that these are mere fillips, rhetorical tributes whose meaning does not extend to the nuts and bolts. But the Court has addressed the nuts and bolts of truth, as well–and fairly recently, with rather more elaboration and ardor than a merely rhetorical tribute would ordinarily evince. Writing for the Court in a little-noticed 1997 case called Old Chief v. United States, Justice David Souter explained that a diligent, faithful prosecutor will want to present his case so that it “not only satisfies the formal definition of an offense, but tells a colorful story with descriptive richness.” “Evidence thus has force beyond any linear scheme of reasoning, and as its pieces come together a narrative gains momentum, with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict. . . . The evidentiary account of what a defendant has thought and done can accomplish what no set of abstract statements ever could, not just to prove a fact but to establish its human significance, and so to implicate the law’s moral underpinnings and a juror’s obligation to sit in judgment. Thus, the prosecution may fairly seek to place its evidence before the jurors, as much to tell a story of guiltiness as to support an inference of guilt, to convince the jurors that a guilty verdict would be morally reasonable as much as to point to the discrete elements of a defendant’s legal guilt.” This does not sound like Judge Lynch’s pinched and mechanical vision of the prosecutor’s task. It sounds, instead, like a system of law that is at once alive, intelligent, hungry for nuance and subtlety, and expectant that it will receive an almost encyclopedic range of evidentiary assistance from the government’s attorneys–not just so that the right button gets pushed, guilty or innocent, but so that “the people” arrive at truth, in all its necessary context. Immanuel Kant would be proud. So perhaps Kenneth Starr isn’t that eccentric, after all. And perhaps there exists one other small clue that the consensus of legal opinion hostile to Starr’s brand of truth-centered justice might not be so complete as it appears: Benjamin Wittes’s muscular and cogent criticism of Starr is an original one. In 1998, some of the world’s smartest and best-paid lawyers hurled every argument and calumny they could think of against the poor man. But as I recall, not one of them thought–or dared–to say Starr cared too much about the truth. David Tell is opinion editor of The Weekly Standard.
