THERE’S A NIFTY DIVISION OF LABOR at the Clinton White House for handling the public relations side of the Whitewater scandal. “As a general proposition, I try to stay out of it,” says Mike McCurry, President Clinton’s press secretary. If he agreed to answer questions about Whitewater routinely, McCurry adds, “I’d very quickly do nothing else.” And Whitewater would be a bigger story. Besides, he’d lose his effectiveness as the administration’s spokesman on foreign affairs, domestic policy, and other matters. He’d become Clinton’s Whitewater shill. So the job of talking about Whitewater has fallen to Mark Fabiani, a genial lawyer in the White House counsel’s office. Oddly enough, he’s popular with reporters because, unlike some Clinton aides, he returns phone calls.
This arrangement has worked swimmingly for the White House, particularly if judged by the dwindling interest in Whitewater by the Washington press corps. One reason is McCurry and Fabiani have been careful in picking fights. They’ve gone after Republican senator Al D’Amato, chairman of the Senate Whitewater Committee, who is loathed by the media. Fabiani trashes D’Amato as a crassly partisan tool of Kenneth Starr Bob Dole’s presidential campaign and insists there’s no reason to continue public hearings. As for David Hale, the ex-judge in Little Rock who’s accused Clinton of pressuring him to make an illegal $ 300,000 loan, even McCurry pipes up (“false allegations”). Fabiani contends Hale concocted the story in hopes of getting a lighter sentence for his own wrongdoing.
In dealing with Blood Sport, the bestselling Whitewater book by journalist James Stewart, and independent counsel Kenneth Starr, the White House team has been more subtle. McCurry is gently critical of Blood Sport, arguing Stewart produces nothing new. But he’s also lobbied reporters to read an anti-Stewart screed by Garry Wills in the New York Review of Books that says Stewart was duped by James McDougal, the partner of the Clintons in the Whitewater development.
The approach to Starr is even more indirect. No one at the White House attacks Starr publicly. The last thing the president wants is a public spat with the special prosecutor. That would trigger extensive news coverage and revive Whitewater as a major story. Still, the White House would like to discredit Starr. So when asked about Starr, Fabiani sends reporters clips about the prosecutor’s alleged conflicts of interest. At least partly as a result, the conflict story has gotten considerable press attention.
The problem for Starr is that he’s kept up his private law practice while directing the Whitewater investigation. Independent counsels are allowed to do this, and many have. The idea, after all, is to attract nationally recognized attorneys skilled in white-collar crime cases. Forced to abandon their practices, many top lawyers would be unwilling to serve as special prosecutors. Nonetheless, some of Starr’s admirers believe he should devote full time to Whitewater because it’s an investigation of the president, not a peripheral government figure. Otherwise, he’s bound to invite more criticism for slighting his duties as independent counsel in order to make money.
Starr’s special burden is that the private cases he’s handled are “all high profile,” says ” Joseph diGenova, the former U. S. attorney for Washington, D. C., and himself a former independent counsel. Starr represents tobacco companies in a high-stakes liability case and the state of Wisconsin in litigation defending a school choice program. And his law firm, Kirkland & Ellis, worked out the settlement of a suit by the Resolution Trust Corporation as Starr was probing RTC offcials on Whitewater.
It’s a stretch to maintain that Starr’s work on these cases involves real conflicts of interest. The argument in the tobacco case is that Starr, by representing Brown & Williamson, has an additional incentive to go after Clinton aggressively. Why? Well, Brown & Williamson and other tobacco companies don’t like the Clinton administration’s attack on smoking. By this reasoning, if Starr represented a manufacturer — or had in the past and might in the future — he’d have a conflict because manufacturing companies are upset with Clinton’s veto of product liability reform. Just as tenuous is the case for a conflict in the school choice dispute. There, the argument is that Starr, hired as a constitutional expert by the Bradley Foundation, then as a litigator by the state of Wisconsin, is compromised by his connection to Bradley. Why? Among its many grantees is the American Spectator, which has run articles sharply critical of Clinton. Sam Dash, the former Senate Watergate Committee counsel and Starr’s ethics adviser, is right in concluding this hardly taints Starr as biased against Clinton. Dash is a Democrat.
More serious is the supposed conflict with the RTC. Since the RTC has sued Kirkland & Ellis over its representation of a savings and loan, there’s a built-in conflict for Starr in investigating that agency. That’s the theory, anyway, as laid out in a breathless article in the Nation. But thousands of prominent lawyers would be ineligible as Whitewater counsel under this theory, since the RTC has sued more than 500 law firms that worked for S&Ls in the 1980s. Also, the legal work occurred before Starr joined the firm. Starr “was walled off from the case,” says senior partner Jack S. Levin, and his name was never mentioned in negotiations between the firm and the RTC. Dash found no conflict, and there’s no evidence of one. Thus, the notion of an actual conflict dissolves. But the possible appearance of a conflict leaves Starr with a PR problem.
The effort to discredit Starr has already taken a toll. He feels embattled, and he’ll be all the more vulnerable if Arkansas governor Jim Guy Tucker and Jim and Susan McDougal are acquitted in the Little Rock trial in which Hale is their chief accuser. Then, Starr can expect noisy demands that he wrap up his investigation since his star witness, Hale, isn’t credible. We’ll be reminded by Fabiani and others that Hale is the only person who has directly implicated Clinton in criminal wrongdoing. Should Starr proceed with Whitewater, he’d be accused of being driven by partisanship, not independent judgment. Of course, should Starr win convictions of Tucker and the McDougals, his hand would be strengthened, Hale’s credibility enhanced, and Whitewater revived as a newsworthy issue.
Absent that, Starr won’t entirely fade away. It turns out the administration is not of one mind on Starr. Attorney General Janet Reno got a three-judge court on March 22 to broaden Starr’s investigation to include Travelgate. That means real trouble for Hillary Rodham Clinton, former White House aide David Watkins, or both. Mrs. Clinton told a congressional committee she’d had nothing to do with the firing of White House travel office employees in 1993. Watkins has testified he fired them because he had been advised, though not by the first lady directly, that this was what she wanted. Whether the White House likes it or not, Starr now has the task of discovering who’s lying.
by Fred Barnes
