Attorney General Kenneth Starr?
By Robert Parry
All right, President George W. Bush or some other Republican elected in 2000 is not likely to name Kenneth W. Starr the new attorney general.
But a GOP president in 2001 would draw from a pool of conservative legal talent that shares Starr's disturbingly partisan view of the law, one that looks for ways to criminalize actions by political adversaries while protecting friends and allies.
The Starr experience -- and what it would do to dissent in the country -- could be a sleeper issue in the 2000 campaign.
Stated simply: Can America trust a GOP Justice Department? Would a new Republican administration use the powers of federal law enforcement the way Starr has used his powers as special prosecutor?
Certainly, the national Republican Party has registered no sign of disapproval over Starrs tactics the past 4 1/2 years. Even as the American public gave Starr poll numbers that would have shamed Saddam Hussein, not a single leading GOP political figure criticized Starr for over-zealousness.
Indeed, as long as the target was Clinton, Republican leaders hailed Starr as a champion for the rule of law. After Starr testified for Clintons impeachment last November, House Judiciary Committee Republicans gave him an enthusiastic ovation.
They then took his circumstantial perjury-and-obstruction case to the House floor where only five Republicans -- barely two percent of the GOP congressmen -- voted against impeachment.
In the Senate, Clintons lawyers poked holes in the prosecutions misleading chronologies and ripped apart other faulty suppositions. But 50 Republican senators -- more than 90 percent of the GOP members -- voted to oust the president anyway.
Even, Starrs indictments of Julie Hiatt Steele and other minor figures have drawn no discernable criticism from Republicans.
The scant conservative criticism of Starr has come mostly from prominent right-wingers, such as Richard Mellon Scaife. But Scaife chastised Starr for failing to prove some of the wilder Clinton conspiracy theories, such as dark suspicions about the suicide of deputy White House counsel Vincent Foster.
Republicans have stayed silent, too, about other conservative special prosecutors who mounted fierce investigations of Clinton's subordinates Mike Espy and Henry Cisneros.
In Espy's case, special prosecutor Donald Smaltz pursued the first African-American agriculture secretary for accepting free tickets to sporting events. The lengthy probe destroyed Espy's political career, although a federal jury acquitted him of all counts.
Cisneros, Clinton's first urban affairs secretary and a leading Hispanic politician, faced allegations that he understated how much he had paid a mistress. Special prosecutor David Barrett, who ran Lawyers for Reagan in 1980, put Cisneros's former girlfriend in jail for 3 1/2 years and obtained an 18-count felony indictment against Cisneros that is still pending.
A chief reason why hardline conservatives landed these jobs as "independent counsels" was the virtual hijacking of the special-prosecutor apparatus in 1992.
Then, Supreme Court Chief Justice William Rehnquist appointed a three-judge selection panel controlled by conservative GOP partisan, Judge David Sentelle. In doing that, Rehnquist ignored the Ethics in Government Act's one statutory safeguard for avoiding partisanship, a stipulation that "priority shall be given to senior circuit judges and retired judges."
Brushing aside the law, Rehnquist reached over a host of senior and retired judges to pick Sentelle, a junior judge who had made his mark by voting to overturn the Iran-contra convictions of Oliver North and John Poindexter.
Underscoring Sentelle's political bias was his first special-prosecutor choice in late 1992, when President Bush's operatives were caught digging through Clinton's passport file and then leaking a phony criminal referral about the Democratic presidential nominee.
Rather than picking a political adversary of the Bush administration -- the pattern that would be employed against Clinton and his aides -- Sentelle's panel chose Joseph diGenova, a former Reagan-Bush prosecutor. Despite extensive evidence of multiple crimes, diGenova discerned no wrongdoing by his GOP colleagues.
This past year, diGenova and his wife, Victoria Toensing, another Reagan-Bush official, have served as MSNBC on-air consultants defending Starr and denouncing Clinton.
Despite the unfairness of letting political ideologues -- of any persuasion -- dominate the powerful special prosecutor apparatus, no prominent Republican complained about Sentelle or his choice of prosecutors.
Rather, the Republican Party seems to have fallen in love with the idea of using criminal statutes and legal orders to silence or punish anyone who gets in the way. Again, Starr marked the trail.
Early in the Monica Lewinsky scandal, Starr hauled before the grand jury Clinton officials who were suspected of leaking negative information about Starrs office. The theory was that criticizing Starrs prosecutors could amount to obstruction of justice.
Other Republicans soon followed Starrs lead. Last September when Salon magazine reported that Rep. Henry Hyde, R-Ill., had engaged in a long extramarital affair with a married mother of three, Hyde announced that publishing the story could be judged a crime, although the facts were accurate.
"Efforts to intimidate members of Congress or interfere with the discharge of their duties in relation to the impeachment matter could constitute violation of federal criminal law," declared the chairman of the House Judiciary Committee. House GOP leaders referred the matter to the FBI.
Republicans lodged a similar complaint when Hustler publisher Larry Flynt announced that he had uncovered documentary evidence of sexual indiscretions by other GOP lawmakers.
Again, Flynt's evidence appeared sound. Rep. Bob Livingston, R-La., the then-speaker-designate, confessed to extramarital affairs and resigned. While denouncing Flynt, Rep. Bob Barr, R-Ga., did not challenge the incriminating documents that had come from one of Barrs divorce proceedings.
The truth of the charges aside, the conservative Landmark Legal Foundation and the Republican National Committee joined forces in demanding a criminal investigation of Flynt and his investigator, Dan Moldea, on blackmail and obstruction charges.
This time, the legal reasoning was that Flynt committed a crime by announcing that he would publish the stories only if he detected hypocrisy by individual Republicans attacking Clinton. The GOPs "logic" was that not publishing was blackmail.
Broadening the criminal conspiracy further, GOP national chairman Jim Nicholson tossed in Democratic operative James Carville because Carville had threatened to exact political retribution against Republicans who pushed for Clinton's ouster.
"The Flynt-Carville-Moldea tactics of intimidation and blackmail aren't just wrong, they're illegal, and our attorney general ought to take off her blindfold and begin criminal prosecutions," Nicholson stated on Jan. 15.
In other words, the chairman of the Republican Party was arguing that not only should accurate reporting about GOP misdeeds result in criminal prosecutions but seeking to defeat a Republican through elections also should be judged illegal.
But criminal referrals were only part of the picture. Conservative legal groups, such as Larry Klayman's Judicial Watch and John Whitehead's Rutherford Institute, have demonstrated the value of mounting civil suits against political enemies.
Because judges normally permit wide-ranging discovery -- even if the evidence is inadmissible in court -- these groups compel political adversaries to testify in lengthy depositions and then use the answers for political ends.
Under the rubric of a civil suit against Hillary Clinton and others for the delivery of FBI files to the White House, Klayman subpoenaed reporters for the New Yorker and Salon magazine.
Similarly, Whitehead used the Paula Jones case to justify broad discovery about President Clinton's private life and to corner him with questions about his affair with Monica Lewinsky.
The Jones case also was not a rogue operation by some right-wing extremists. From its start in 1994, the case drew discreet support from well-connected Republican lawyers who associated with another conservative legal group, the Federalist Society. Starr and Sentelle also have close ties to the Federalist Society.
During the Bush administration from 1989-93, White House counsel C. Boyden Gray relied explicitly on the Federalist Societys recommendations to fill federal court vacancies. Gray is now a member of the Federalist Societys board of trustees.
No matter who would be the new Republican president, he or she almost certainly would turn to the Federalist Society and other conservative legal groups for lawyers to fill key slots at the Justice Department in 2001.
But Iran-contra special prosecutor Lawrence Walsh, a lifelong Republican himself, has raised a red flag about these conservative jurists who hold a "continuing political allegiance" to the Federalist Society.
"It reminded me of the communist front groups of the 1940s and 1950s, whose members were committed to the communist cause and subject to communist direction but were not card-carrying members of the Communist Party," Walsh wrote in Firewall.
Some critics of Starr have argued that his extremism in the pursuit of Clinton has shown that the independent counsel law needs major reform. Others say the law is simply unworkable and should be abolished.
New York Times columnist Anthony Lewis argued that "the statute invites us to take political matters to the criminal law: a terrible mistake." [NYT, Feb. 20, 1999]
But the problem is only partly the law. In the 14 years before Sentelle, the system was dominated by Republicans but did not exhibit overt partisanship. The trouble arose when partisan judges were put in charge.
The larger danger now is that the conservative movement -- certain of its righteousness -- will exploit its power over any part of the criminal justice system to damage political enemies.
That is why the election of 2000 could be so pivotal. If a Republican wins, conservative activists won't need a special prosecutor to bring criminal charges against those they disdain.
The hard question to the Republican Party, therefore, is whether a GOP president can find lawyers to staff a Justice Department who are not Kenneth Starr clones.
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