Death of American Virtue - Ken Gormley [347]
Ken Starr himself was firmly opposed to subpoenaing the president—at least not yet. Despite the general perception that Starr was a zealous Clinton hater, he was extremely reluctant to do anything that might appear to be an affront to this or any other president. His overriding concern, as a former federal judge and solicitor general, related to “our duty to be respectful of the presidency.”
During one staff meeting over which Bob Bittman presided, the young former Maryland sex-crimes prosecutor had begun by telling his colleagues that “our information is that Clinton did this” and “Clinton did that.” At the conclusion of the meeting, Starr took his young deputy aside and corrected him: “Bob, you referred to the president as ‘Clinton.’ He is the president. Please refer to him as ‘the president’ or ‘President Clinton.’” Starr insisted that nobody on OIC’s staff should act disrespectfully toward the president, no matter how intense the hatred toward Bill Clinton might be growing.
Starr repeatedly hammered this point home in meetings with his prosecutors, reminding them of Chief Justice John Marshall’s 1805 opinion in U.S. v. Burr and other cases suggesting that issuing subpoenas to the president was a measure of last resort. Starr’s theme was, “We’ve got to be very respectful. We’ve got to really go the extra mile.” The independent counsel did not claim to be optimistic that President Clinton would voluntarily show up in the grand jury room. Yet he felt that OIC needed to continue to “reach out and encourage” because “lightning might strike.” Starr also believed that Chief Judge Norma Holloway Johnson needed to see “that we have done everything [possible]” before taking the final step of serving a subpoena on the chief executive.
Increasingly, Starr dropped comments indicating that he favored a “dump-truck” approach—a notion that horrified most of his legal team. The independent counsel wanted to assemble all their evidence and just “send it up there to the Congress and let them take it over.” After all, OIC was a puny operation with no biceps to flex. It was “ill equipped” to take on the entire executive branch in order to prove that the president had committed impeachable offenses. Starr would whisper to his staff, behind closed doors, that they were now squarely in “593c territory,” referring to the provision of the independent counsel law mandating that they pass along “substantial and credible” information to Congress if they determined that the president may have committed impeachable offenses. Wasn’t it Congress’s job to take over from here?
As Starr debated this point with his doubting prosecutors, he invoked “the image of [an] island that suddenly appears out on the ocean and is buffeted by the winds and the waves and storms at sea.” OIC was now this little island. It had no support from the executive branch, even from the Justice Department, to which it was theoretically appended. Through his own horrible blunder in the Brill’s Content mess, OIC prosecutors had lost the respect of Judge Johnson, who oversaw their case. At this point, he and his staff were a band of truth seekers adrift in dark, choppy waters.
Starr removed his glasses, rubbed his eyes, and sat back in his chair pensively. He asked his staff to indulge him in one more analogy. Back in his days of appellate practice, Starr recalled, he had handled a satellite technology case that seemed to offer an apt parallel. Their position was now akin to that of a communications satellite that had moved into its final, transitional orbit—a dangerous stage