Death of American Virtue - Ken Gormley [179]
The Starr report on Vince Foster—albeit long and protracted—was thorough and balanced. There was no effort to cast aspersions on the Clintons or to fuel rumors that Foster had been murdered. It was as if Starr welcomed the chance to reclaim his reputation as a neutral truth-seeker, using the Foster report as an opportunity to give himself a shot of credibility. He was trying to choose his fields of battle more carefully.
One important step taken at Starr’s direction remains a little-known piece of history—that OIC tried its hand at drafting an “impeachment referral” to Congress, long before Starr’s prosecutors ever heard the name Monica Lewinsky. This draft impeachment report dealt exclusively with the thin body of evidence related to President Clinton’s alleged criminal conduct linked to Whitewater and Madison Guaranty.
The independent counsel law, enacted in the aftermath of Watergate, contained a short, quirky provision directing the special prosecutor to turn over to Congress any “substantial and credible” information of impeachable offenses. There was virtually no legislative history indicating what Congress meant here. What was “substantial and credible”? Was the provision mandatory? (It used the word “shall,” which seemed to indicate a duty.) If so, in what form was a special prosecutor supposed to hand over such information, once it was discovered? Much of the evidence gathered up by any prosecutor was raw grand jury material protected by the Federal Rules of Criminal Procedure. Disclosing it without court authorization could expose prosecutors themselves to criminal sanctions. The odd impeachment referral provision was fraught with complications.
Ken Starr, a former federal judge and constitutional expert, was well aware of these pitfalls. At the same time, he believed that the impeachment referral provision contained in the statute should be read literally. As part of his effort to push the Whitewater/Madison case to its outer boundaries and to determine if it was time to pack up and conclude the investigation, Starr quietly assigned lawyers to begin drafting an impeachment referral relating to President Clinton’s alleged Whitewater offenses to see how it wrote.
As Starr later explained this well-kept secret of his investigation, the chief impetus for taking this extraordinary step was that it was now time to fish or cut bait. Jim McDougal had gone off to prison. No new leads seemed likely. “McDougal had given us everything he could,” said Starr. “Susan McDougal had gone into contempt. We had exhausted everything … in terms of leads.” Now the prosecutors had to assess the evidence and decide what to do with it. There were enough facts that potentially incriminated the president, Starr believed, that he had an obligation to determine if he should refer the matter to Congress. “Jim McDougal was quite clear with us [during debriefing sessions] that at the trial deposition, the president knowingly lied,” Starr explained. “And at this point, we were crediting Jim McDougal.” The Madison documents comprised millions of pieces of paper; confirming whether McDougal was telling the truth, on any particular point, was like searching for a needle in the proverbial haystack. Yet Starr believed he needed to assemble the evidence and see if it added up.
“So I initiated the drafting of a report,” recalled Starr. He hired Stephen Bates, who had served as literary editor of the prestigious Wilson Quarterly at the Woodrow Wilson Center in Washington, to head up the project. Starr immediately dispatched Bates to Little Rock to sit down with Hickman Ewing, the person who felt most strongly that the government could make out a valid case against Bill Clinton. Together, the two men began summarizing the evidence, creating a draft report to Congress. Starr’s marching orders to Bates were “I don’t want this to be rushed. I want it to be perfect.… You take your time. You do it right.”
Starr also hired a young, offbeat, and likable libertarian lawyer named Paul Rosenzweig to help produce the