[Congressional Record Volume 142, Number 64 (Thursday, May 9, 1996)]
[Extensions of Remarks]
[Pages E742-E743]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 EX-PROSECUTORS CRITICIZE KENNETH STARR

                                 ______


                           HON. BARNEY FRANK

                            of massachusetts

                    in the house of representatives

                         Wednesday, May 8, 1996

  Mr. FRANK of Massachusetts. Mr. Speaker, since coming to the House 
and joining the Judiciary Committee, I've been involved with the 
independent counsel law. When that law expired just as Bill Clinton was 
taking office, I was one of the Democrats who insisted that it was 
essential that we reauthorize the law, despite the fact that it would 
now be once again be a Democratic administration which would be subject 
to its impact. I noted that the law had originally been passed by a 
Democratic Congress under a Democratic President, and that Republican 
objections during the 1980's and early 1990's that it was a partisan 
instrument aimed at them was obviously inaccurate. And I am pleased 
that the Democratic leadership in Congress and President Clinton did 
everything possible to get the law reauthorized--even though it did 
lapse temporarily because of a Republican filibuster in the Senate.
  When questions arose involving accusations about the President in 
1993, I was one of those urging that an Independent Counsel be 
appointed. I think Attorney Reno behaved with great integrity and 
appropriateness in doing everything she could under the law to provide 
for an independent investigation, even during that period when the law 
had temporarily lapsed because of that Republican filibuster. And I 
have continued to defend the institution as a necessary one.
  I am therefore all the more distressed by the insensitive and 
disturbing pattern of behavior engaged in by the current independent 
counsel, Kenneth Start. First, it should be noted that Judge Sentelle, 
who was named by Chief Justice Rehnquist to head the panel of judges 
who appoint independent counsel, erred grievously by appointing someone 
as partisan and as politically opposed to the Clinton administration as 
Kenneth Starr as the independent counsel to investigate the President 
in the first place. Mr. Starr should have said no. And having said yes, 
he should have determined that he would be extremely careful in 
carrying out his duties in a way that minimized any concern about his 
objectivity and fairness.
  Instead, he has behaved in a way that has bothered a wide range of 
objective observers, including apparently many of those who have 
preceded him as independent counsel. In Monday's Washington Post, R.H. 
Melton writes a story which is accurately headlined ``Ex-Prosecutors 
Concur on Case Against Starr's Private Work.''
  In the article, R.H. Melton quotes from a wide range of former 
independent counsel, including several people who held important 
appointed office under Republican President, who agree that Kenneth 
Starr has erred seriously in his conduct in the independent counsel 
office. Particularly by taking on a wide variety of cases in which he 
is representing people who are legally and politically arrayed against 
the President he is investigating, Mr. Starr has compromised the very 
nature of the independent counsel office.
  This investigation of the President has already gone on for a very 
long time, with no results in terms of any negative information being 
brought forward against the President. It costs an enormous amount of 
money for the results we have gotten, and it has called into question 
unfortunately the usefulness of this very important office.
  Mr. Speaker, the article by R.H. Melton and the wide range of 
Republican and Democratic criticisms of the independent counsel so 
quoted in it makes it clear that this is a serious problem, and not 
simply a case of Democrats objecting to Mr. Starr's work. As one who 
has worked hard to preserve this important office, and who joined in 
asking for an independent counsel to look into the allegations against 
President Clinton, I am extremely disappointed by Mr. Starr's 
performance and I think it is appropriate for R.H. Melton's 
documentation of the view of previous independent counsel about Mr. 
Starr's work to be printed here.

                 Ex-Prosecutors Criticize Kenneth Starr

                            (By R.H. Melton)

       The former independent counsels are a varied lot, composed 
     of Republicans and Democrats, smooth-talking silk-stockings 
     and gruff old men. Varied, too, were their assignments. Some 
     had big cases; some worked virtual anonymity.
       But from the well-heeled New York lawyer to the New Orleans 
     septuagenarian, the former prosecutors agree on one thing; 
     Whitewater counsel Kenneth W. Starr has put himself in a bad 
     spot.
       In separate interviews last week, former prosecutors 
     expressed a consensus view that their old U.S. government 
     position, with its broad investigative powers, is too 
     important for any counsel to be distracted by the busy 
     outside caseload and high-profile clients that Starr has 
     kept. They advise Starr to strictly limit the non-Whitewater 
     activity that has prompted recent criticism and focus on his 
     wide-ranging investigation into President Clinton's decade-
     old real estate venture and the White House reaction to 
     inquiries into the matter.
       ``He's devoting a hell of a lot of time to private 
     practice,'' said Gerald J. Gallinghouse, 75, a Republican and 
     retired U.S. attorney from New Orleans who investigated an 
     aide to President Jimmy Carter on a drug allegation in early 
     1981.
       ``He should either get in or get out,'' Gallinghouse said. 
     ``I don't give a damn about the Republicans, Democrats, Bull 
     Moose or mugwumps. He should get on with the investigation 
     and bring it to a conclusion as soon as practicable. And 
     you're not going to do it with the top man running all over 
     the country making speeches and taking care of private 
     clients.''
       Starr's clients range from tobacco giants to the NFL 
     Players Association. Last month his schedule took him from 
     the halls of the Supreme Court to a federal appeals court in 
     new Orleans within one week. He has some clients whose 
     interests are inimical to those of the Clinton 
     administration. In a major school-voucher case in Wisconsin, 
     for example, Starr was paid by a conservative foundation that 
     has funded some of Clinton's harshest critics.
       Even though his outside work is quite legal, critics point 
     to such cases as evidence that Starr is not as independent or 
     devoted to his government duty as he should be. Much of the 
     criticism has been strongly partisan, fueled by White House 
     aides and other Democrats who want a tidy resolution to 
     Starr's inquiry before the presidential election this fall.
       Still, the observations of the former counsels are unusual 
     in their breadth and force. Some of them know Starr 
     personally, and others know his reputation as a brilliant 
     legal mind with strong Republican credentials. nearly all of 
     the seven counsels interviewed expressed surprise that Starr 
     would load so much on his plate and stir partisan 
     controversy, particularly in an inquiry focused squarely on a 
     sitting president and first lady. A few of them voiced 
     disappointment.
       Starr declined to be interviewed for this article, but a 
     month ago he issued a spirited defense against the criticism 
     that had been mounting against his outside caseload. Starr 
     told a bar association group in San Antonio that the 
     independent counsel ``was never expected to become a full-
     time employee of the government and leave his or her law 
     firm.''
       ``To require independent counsels . . . to become full-time 
     employees wastes not only government resources, but the legal 
     talents of the individuals called to serve,'' Starr said.
       Starr noted that nearly all of the independent counsels 
     continued to maintain their private practices. But a number 
     of them recalled in interviews that they scaled back their 
     practices sharply and turned down prospective clients who may 
     have created the appearance of a conflict of interest.

[[Page E743]]

       Ten independent counsels were named between 1978 and 1992 
     and two others conducted confidential investigations. The 
     inquiries ranged widely in complexity and cost; Iran-contra 
     cost $47 million and lasted nearly seven years; a three-month 
     investigation into a drug allegation against an aide to 
     Carter cost $3,348. The Whitewater inquiry by Starr and his 
     predecessor has cost more than $20 million so far and is one 
     of three now pending against the Clinton administration.
       Arthur H. Christy, a New York lawyer appointed in late 1979 
     to investigate a drug allegation against Carter White House 
     chief of staff Hamilton Jordan, said he declined to defend 
     ``some white-collar criminal types because I didn't think it 
     was appropriate to be defending them on the one hand and on 
     the other trying to put some guy in jail.''
       Arling M. Adams, a former federal judge from Philadelphia 
     who looked into allegation of financial improperties 
     involving Department of Housing and urban Development money, 
     said that while he did not completely divorce himself from 
     his law firm at the time, ``I did substantially restrict my 
     activities.
       ``People might say I'm a fool'' because of the lost income, 
     he said, ``but I had in mind in particular the necessity of 
     gaining the confidence of the public and the press. I tried 
     to avoid anything that would deflect attention from what I 
     was doing as IC. The issue is perception and confidence.''
       A number of the independent counsels interviewed last week 
     said investigating a sitting president puts a special burden 
     of probity on the investigator.
       ``It's different order of magnitude,'' said Lawrence E. 
     Walsh, the Oklahoma lawyer and former judge who ran the Iran-
     contra investigation. ``The one excuse for an IC is his 
     independence. If not necessarily full-time detachment from 
     everything else, he can't be involved with anything that 
     impairs his freedom of action.''
       ``When you're investigating a president, it's different,'' 
     said Joseph E. diGenova, a Republican who was named an 
     independent counsel in late 1992.
       DiGenova, a former U.S. attorney in the District who as 
     independent counsel looked into the State Department's search 
     of Clinton's passport records, said that while Starr has 
     ``pristinely adhered'' to the statute permitting counsels to 
     keep their private legal practices, he should eliminate all 
     the partisan sniping by relinquishing it for now.
       ``It's a distraction,'' diGenova said. ``He's giving the 
     enemies of the law ammunition to use against him. He should 
     take away the phony weapon from his adversaries.''
       Whitney North Seymour Jr., a New York litigator who as 
     counsel won a prejury conviction against former Reagan White 
     House aide Michael Deaver, said the complexities of that case 
     forced him to work virtually full time.
       ``When we were engaged in the intensive parts of the 
     investigation or trial preparation, I did not have time for 
     anything else,''Seymour said. ``My practice was to be hands-
     on; interviewing witnesses, reading documents and presenting 
     to the grand jury.''
       James C. McKay, a partner at the Washington firm Covington 
     & Burling who investigated the Wedtech defense contractor and 
     Reagan White House political director Lyn Nofziger in the 
     late 1980s, said he regarded the assignment as a full-time 
     job. ``I shed everything I was doing after a month,'' McKay 
     said. ``I was devoting 99.9 percent of my time to the job I 
     was given to do. I felt like I could concentrate on the very 
     difficult problems much better if I did that and the job 
     could be done more quickly and efficiently.''
       Added diGenova: ``For the good of the office and the good 
     of the investigation, sometimes you have to do some things 
     you don't want to do.''

                          ____________________