[Congressional Record Volume 140, Number 117 (Thursday, August 18, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: August 18, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
 THE REPLACEMENT OF ROBERT FISKE WITH KENNETH STARR AS SPECIAL COUNSEL

  Mr. LEAHY. Mr. President, the recent firing of Robert Fiske and his 
apparent replacement by Kenneth Starr continuous to trouble me. The 
most recent revelation in this regard is Mr. Starr's reported plan to 
stay active with his prestigious law firm, to maintain active 
relationships with his other clients, to retain his seat on his firm's 
management committee and continue to draw his reported seven-figure 
salary.
  The fact that Mr. Starr is approaching this as a part-time pursuit is 
among the most troubling aspects of this matter that has dragged on far 
too long for such little cause--other than the political hay being 
thatched by the President's political opponents. I think the American 
people have long since lost interest in events that occurred in 
Arkansas two decades ago. The only thing that is continuing the 
investigation is the investigation, itself. The firing of Robert Fiske 
serves only to delay its conclusion even further.
  Now we learn that Mr. Starr, who was anxious to accept this 
appointment, is proceeding with his vacation plans, has not decided 
what staff he can retain, has not assembled new staff, has not gotten 
up to speed, is still reviewing matters, and plans to pursue a 
leisurely pace being a part-time investigator and full-time partner in 
a demanding, sophisticated and well-connected law practice. What is 
going on here?
  Some time ago I noted my concern that the firing of Robert Fiske and 
appointment of Kenneth Starr had done nothing to improve appearances. 
Some have been concerned from the outset that Mr. Starr might be 
motivated by personal or political gain. I refuse to subscribe to that 
view, but did call upon Mr. Starr to provide public reassurances by 
renouncing any interest in seeking or accepting public office in the 
future. His having served as a special counsel investigating the 
President of the United States should not be something that supplements 
a political resume and is later used as a basis for obtaining appointed 
office or even elective office. In other words his personal fortunes in 
the future ought not be tied in any way to the outcome of the 
investigation. Otherwise the investigation will not be seen as 
impartial and its results will not be accepted.
  Mr. Starr has ignored suggestions to renounce future political 
aspirations. Now we find that we do not have to wait until the future 
to become concerned. We must also be concerned about the present. How 
is Mr. Starr going to juggle his responsibilities, his personal career 
interests and the financial interests he shares with his partners? 
Where is he going to devote his time and attention once he returns to 
work?
  At this point I ask that the August 15 article from the Legal Times 
entitled ``Starr Plans To Stay Active at Kirkland & Ellis'' be 
reprinted in the Record.
  I also ask that the editorial from today's New York Times entitled 
``Mr. Starr's Duty To Resign'' be reprinted, as well.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                       Mr. Starr's Duty to Resign

       When a special Washington court replaced Robert Fiske with 
     Kenneth Starr as Whitewater independent counsel two weeks 
     ago, the judges specifically cited the need for the 
     appearance, as well as the reality, of impartial justice. But 
     it is now clear that the chairman of that panel, Judge David 
     Sentelle, violated the court's own standard for purity of 
     appearances by meeting with a Senator eager to have the court 
     dump Mr. Fiske as counsel. For that reason, the appointment 
     of Mr. Starr is fatally tainted.
       This situation was brought about by Judge Sentelle's 
     flamboyantly bad judgment in meeting with Senator Lauch 
     Faircloth and another Clinton opponent, Senator Jesse Helms. 
     At the time, Judge Sentelle and his two colleagues on the 
     court were considering the appointment of a new prosecutor. 
     Mr. Starr is in no way to blame for this untoward meeting, 
     but he has to recognize that a cloud of political favoritism 
     now hangs over his appointment and will undermine public 
     confidence in it. As a matter of public service and personal 
     honor, he should resign the appointment.
       The independent counsel law, recently renewed, is designed 
     to make sure that Federal investigations involving high 
     government officials--in this case President and Mrs. 
     Clinton--are evenhanded and appear so. Yet last month, while 
     the court was studying whether to keep Mr. Fiske or make its 
     own choice, Judge Sentelle lunched with Senator Faircloth, 
     leader of a group pressing the Justice Department to remove 
     Mr. Fiske.
       Joining them in the Senate dining room was Senator Helms, 
     Judge Sentelle's political patron and one of the Clintons' 
     most outspoken foes in Congress. They all deny discussing the 
     pending appointment. But the public must not be asked to take 
     such matters on faith, any more than it should have to take 
     on faith that all the suspicious circumstances of Whitewater 
     were innocuous coincidence. A crisis of political confidence 
     cannot be cured by an inquiry that has the look of political 
     collusion.
       In regard to public confidence, there is another troubling 
     circumstance. It now emerges that Mr. Starr was working on a 
     legal brief for a conservative women's organization opposing 
     President Clinton in the Paula Jones sexual harassment 
     lawsuit against him. Mr. Starr's legal view, that the 
     President enjoyed no constitutional immunity from the suit 
     for alleged actions when the Governor of Arkansas, had been 
     well known. But by undertaking the friend-of-the-court brief 
     Mr. Starr passed from public commentator to litigating 
     opponent of the President, a clear conflict with his 
     independent counsel assignment. Though his firm has ended its 
     participation in the Jones case, Mr. Starr's original 
     decision to take it on further blemishes the appearance of 
     impartiality his present assignment requires.
       Replacing Mr. Fiske was a reasonable step. His own 
     appearance of impartiality was beclouded by the fact that he 
     had been recruited by Attorney General Janet Reno. Indeed, 
     the court placed such a high value on appearance that it said 
     its only reason for replacing him was the need to provide 
     ``an apparent as well as an actual independence on the part 
     of the counsel.''
       By that standard, the Starr appointment cannot stand, nor 
     should Judge Sentelle participate in the naming of a new 
     counsel. He can step aside and leave the matter to his 
     colleagues. Failing that, the Chief Justice ought to name a 
     new chairman for the panel to replace Judge Sentelle.
       At the time of the Starr appointment two weeks ago, this 
     page applauded the court's decision and retains respect for 
     Mr. Starr's service as Solicitor General. But his appointment 
     now looks terrible under the law and the ethical precepts the 
     judges say they recognize. The appearance of impartial 
     justices is not some finicky rule of etiquette but the 
     essence of justice itself. Moreover, President Clinton and 
     others in the Administration deserve a prosecutor who cannot 
     be accused either of favoring them or of being tied too 
     closely to their opponents. Mr. Starr, rightly proud of an 
     honorable career, stands in the way of justice as long as he 
     clings to this unfortunate assignment.
                                  ____


             Starr Plans To Stay Active at Kirkland & Ellis

                          (By Robert Schmidt)

       When Robert Fiske Jr. was tapped in January as Whitewater 
     independent counsel, he immediately severed all ties with his 
     law firm, New York's Davis Polk & Wardwell.
       He stopped working for clients, drew out his share of the 
     firm's profits, and ceased participating in firm activities, 
     says firm chairman and managing partner Henry King.
       ``We never even discussed the issue,'' says King. ``We just 
     though it was appropriate for Bob to take a leave.''
       Fiske's replacement, Kenneth Starr, and his law firm, 
     Chicago-based Kirkland & Ellis, are playing it quite 
     differently.
       Starr not only is maintaining his partnership and his 
     reputed seven-figure salary, but also is planning to keep 
     active client relationships and will even retain his seat on 
     the management committee of the 450-lawyer firm.
       ``Under the independent-counsel statute, Ken is free to 
     remain a partner of Kirkland & Ellis, and Kirkland & Ellis is 
     free to compensate Ken like any other partner,'' says Edward 
     Warren, a partner in the firm's D.C. office who is helping 
     Starr manage the transition to independent counsel, a job 
     Starr officially began last week.


                        The Same, but different

       Starr's arrangement is perfectly legal, and he enjoys 
     freedoms Fiske did not--since Fiske was appointed by Attorney 
     General Janet Reno and considered an executive-branch 
     employee, while Starr, selected under the independent-counsel 
     statute, is not. Further, Starr is following the lead of most 
     previous independent counsel.
       Still, some earlier independent counsel were tripped up by 
     perceived conflicts stemming from their private practices.
       And Starr's decision to maintain an active law practice is 
     now drawing fire from government-watchdog groups. They argue 
     that the unique circumstances of the Whitewater probe and 
     Starr's background demand a higher standard of conduct.
       These advocates say that Starr, whose firm represents 
     numerous corporate clients before the federal government, 
     should avoid even the appearance of conflict--and that means 
     cutting his ties to the firm.
       ``I don't care what is in the canon of ethics or what the 
     law is, that's not relevant,'' says Charles Lewis, executive 
     director of the Center for Public Integrity, a non-profit 
     watchdog group.
       ``To clearly avoid an appearance problem--he only arguably 
     holds the future of the Clinton administration in the palm of 
     his hand--he would at the very least sever his ties and not 
     receive any remuneration from his law firm,'' Lewis says.
       Warren does acknowledge that the firm is still looking into 
     some of the issues surrounding Starr's appointment.
       But he says that firm leader met on Aug. 8, and voiced 
     their strong support for Starr's taking on the Whitewater 
     case and his remaining an active partner.
       ``Kirkland & Ellis certainly wants Ken to remain as active 
     as possible in representing clients,'' says Warren. ``The 
     only question is the time constraints imposed by his new 
     job.''
       Ironically Starr's decision to keep working at Kirkland & 
     Ellis leaves him vulnerable to criticism similar to that 
     leveled against Fiske.
       Last month, conservative activist Floyd Brown and 10 
     Republican Congress members wrote letters to D.C. Circuit 
     Judge David Sentelle, who heads the three-judge panel that 
     appointed Starr, urging that Fiske not be given the post.
       Among other issues, the lawmakers complained that Fiske 
     could not be impartial became his firm represented the 
     international Paper Co., which sold land to the Whitewater 
     development.
       Starr's own impartiality has already been questioned in 
     light of his strong Republican background--and his earlier 
     comments that President Bill Clinton should not be able to 
     claim presidential immunity in the sexual-harassment suit 
     brought against the president by Paula Corbin Jones, a former 
     Arkansas state employee.
       Starr, a former solicitor general and D.C. Circuit judge, 
     joined Kirkland & Ellis in February 1993. He has litigated on 
     behalf of General Motors, financier Victor Posner, and Anglo 
     Irish Beef Processors International.
       Kirland & Ellis longtime clients include General Motors' 
     Abbott Laboratories, the largest producer of baby formula in 
     the United States; the Hughes Aircraft Co.; and the JMB 
     Realty Corp.
       None of the critics know of any actual conflicts involving 
     current Kirkland & Ellis clients and the Whitewater probe. 
     They say that since disclosure of clients is not required, 
     however, it's impossible at this point to know what potential 
     conflicts lurk.
       Specific conflicts aside, critics contend that Starr's firm 
     or its clients could receive special treatment from the 
     government because of their association with the man running 
     such a politically sensitive and potentially explosive probe.
       ``Who's to say Starr's name won't be invoked by some junior 
     partner,'' asks Lewis of the Center for Public Integrity. 
     ``No one [in the government] wants to tick off Starr and his 
     firm.''
       Adds Pamela Gilbert, director of Congress Watch, a non-
     profit founded by consumer crusader Ralph Nader: 
     ``Independent counsel should not be drawing a salary nor 
     should they work at their firm. . . . There should be, at 
     minimum, a temporary severing of ties.''


                             special status

       Starr is required to fill out a standard financial 
     disclosure statement, says Gary Davis, general counsel at the 
     Office of Government Ethics. But Davis is unsure if Starr's 
     clients will be listed on the form.
       If Starr's clients are listed, their names won't become 
     public until he files the form, which he doesn't have to do 
     until May 1995.
       Under the independent-counsel law, Starr is not a full-time 
     government employee, so the usual ethical and disclosure 
     requirements for government workers don't all apply. (Such 
     requirements did apply to Fiske, since he was appointed under 
     regulatory authority during a period in which the 
     independent-counsel law had lapsed).
       It's that part-time status that allows Starr to remain at 
     his firm. Warren, the Kirkland & Ellis D.C. partner helping 
     Starr, says that the firm ``informally consulted with a few 
     [former independent counsel] to be sure of our own ground on 
     this.''
       Former Independent Counsel Lawrence Walsh, who investigated 
     the Iran-Contra matter, says that he supports Starr's 
     arrangement.
       Although Walsh, now of counsel at Oklahoma City's Crowe & 
     Dunlevy, put aside his private practice while independent 
     counsel, he says that the job ``contemplates part-time 
     work,'' by providing per-diem compensation.
       ``The concept of an independent counsel is a person who is 
     a practicing lawyer who is asked to take on a case for the 
     government,'' says Walsh, noting that some of his senior 
     staffers, including Dan Webb, a partner at Chicago's Winston 
     & Strawn, worked part time.
       The notion of allowing independent counsel to keep their 
     outside work is in part meant to entice the best lawyers to 
     take the job, says Katy Harriger, associate professor of 
     politics at Wake Forest University and author of Independent 
     Justice, a study of the history and legal underpinnings of 
     independent counsel.
       On the other hand, potential conflicts loom, and an 
     independent counsel's outside work could take time away from 
     the investigation, thus costing taxpayers more money than 
     necessary, Harriger offers.
       ``It's always been sort of an unresolved issue,'' says 
     Harriger, who notes that one former independent counsel, 
     Alexia Morrison, provoked controversy with her outside work.
       Lewis and some other activists are also troubled that 
     Starr's law firm, Kirkland & Ellis, does not have to disclose 
     publicly its clientele. It is unclear whether Starr will have 
     to disclose his own client list.
       Starr would not comment for this article, and Warren 
     declines to discuss Starr's or the firm's clientele.
       Morrison, a partner in D.C.'s Swidler & Berlin, was 
     appointed independent counsel in 1986 to investigate charges 
     that Theodore Olson, when he was assistant attorney general 
     for the Justice Department's Office of Legal Counsel, lied to 
     Congress.
       During her investigation, Morrison also represented Carl 
     ``Spitz'' Channell, a fund-raiser for the Nicaraguan Contras 
     who at the time was being probed by Walsh and who eventually 
     pleaded guilty to criminal tax charges.
       Despite an outcry from Congress, the Justice Department, 
     and other D.C. lawyers, Morrison remained in her post and 
     kept her client. She did not return calls last week.
       That wasn't the first time an independent counsel's private 
     practice caused the counsel some problems.
       Morrison had taken over the job as independent counsel from 
     James McKay, who was forced to remove himself because of a 
     conflict. McKay, then a partner at D.C.'s Covington & Burling 
     and now senior counsel, stepped down because one of his 
     partners, Charles Ruff, had done work for the House Judiciary 
     Committee conducting the investigation that prompted the 
     inquiry on Olson.
       Harriger notes that independent counsel are checked for 
     conflicts by the secretive three-judge panel that selects 
     them. But after that, the counsel must be trusted to recuse 
     themselves if any conflicts arise.
       ``If the judges do their job, they can uncover most of the 
     conflicts,'' says Harriger. ``Most of the [independent 
     counsel] did continue to do some work for their firms. I also 
     think they made a conscious effort to remove themselves from 
     any conflicts of interest.''
       Starr, through a spokesman, declines to say anything about 
     his disclosures to the three-judge panel. The head of the 
     panel, Sentelle, was out of town and did not return phone 
     calls.
       It is precisely the lack of public discussion of Starr's 
     law practice that most disturbs his critics.
       Says Ellen Miller, director of the Center for Responsive 
     Politics: ``I think there could be some serious problems 
     here. The bottom line is that the public is in the dark about 
     this.''
       Meanwhile, Rep. John Bryant (D-Texas), who heads the House 
     Judiciary subcommittee with jurisdiction over the 
     independent-counsel law, got in his own jab at Starr.
       Bryant on Friday introduced a bill requiring the three-
     judge panel to appoint independent counsel ``without any real 
     or apparent personal, financial, or political conflict of 
     interest.''

                          ____________________