Fighting Clean

Friday, July 2, 2010

When I catch up with Ken Starr—after hours of phone tag—he sounds exactly like a man who has given his interrogators the slip: mighty relieved. Starr, as the outgoing dean of the Pepperdine Law School, has been put through his paces all day by a team of assessors from the American Bar Association, camped out at his law school to review (routinely) its ABA accreditation. It is one of Starr’s last chores at Pepperdine. Soon he will leave to be president of Baylor University, situated but a few miles from the Bush ranch at Crawford, Texas. Might he sign up President Bush as a distinguished visiting professor? I inquire. He chuckles in answer, and ventures: “I’m not at Baylor yet, so I’d just be expressing a thought in response to your question. But yes, I’d like to ‘round-table’ that, as Ed Meese would say. Yes . . . why not? He’d have a lot to offer the school . . . the government department, the business school. . . . He owned a baseball team, remember.”

Starr, long demonized by American liberals for his conduct of the Clinton-Lewinsky investigation, has been in the news again—this time, remarkably, for reasons that liberals should applaud. He is one of a handful of conservative lawyers who have taken a formal, public stand against Liz Cheney, daughter of the previous vice president, and Bill Kristol, whose pressure group, Keep America Safe, has conducted a bare-knuckles campaign to reveal the identities of nine lawyers at the Department of Justice who had represented terrorist detainees in their previous avatars as civilian lawyers. “Whose values do they share?” a Keep America Safe video asks, effectively branding the lawyers un-American. It also describes seven of the lawyers as “The Al-Qaeda Seven.”

“The video was an attack ad,” says Starr, “and it was an attack on both the attorney general and the institution of the Department of Justice.” How does Starr explain the attack? “This is perhaps a visceral response on the part of my friends, whose wise, cooler heads will soon prevail. They are smart and they are thoughtful, but this branch of attack is quite wrong. The national security stakes are very high, as are the understandable emotions involved when it comes to terrorists, enemy combatants, and the like. But this challenge goes to the integrity of the justice system and the proper role of lawyers.

Fighting clean

“In our country, lawyers must be willing to take on unpopular causes, even to the extent of representing individuals who would try to destroy our system. That’s part of America’s enduring moral strength and the greatness of the national commitment to justice. It’s ‘justice for all,’ as the Pledge of Allegiance puts it. That’s why we call our Department of Justice by that lofty name, and not the ‘Department of Federal Law Enforcement’ or the ‘Department of Federal Prosecution.’ ”

“In our country, lawyers must be willing to take on unpopular causes, even to the extent of representing individuals who would try to destroy our system. . . . It’s ‘justice for all,’ as the Pledge of Allegiance puts it.”

Critics have likened the attack to McCarthyism. Does Starr agree? “The video ad is certainly over the top and represents a regrettable rhetorical assault on the integrity of a department that is vitally important to the American people.” But, Starr explains, “The McCarthy era involved the use—and abuse—of official power. Here, in contrast, the great debate is unfolding in the public square. And, thankfully, the First Amendment is vigorously protective of speech with which the majority vigorously disagrees. And so, without fear of official retribution, the lively conversation within the conservative community—and beyond—can continue unimpeded and unthreatened by the power of government. As for official power, the true McCarthy-era analogue, my understanding is that Senator Grassley and Congressman Wolf, both of whom I respect greatly, have asked for information from the [Justice Department] in the discharge of Congress’s oversight duties. There’s nothing wrong with that. That is simply a call for transparency in government, calling the executive branch to be accountable, and thus to my mind is entirely unobjectionable.”

Keep America Safe, by contrast, “simply sweeps too broadly. One of the lawyers got into the Gitmo defense effort at the specific request of military lawyers. Others responded to the need for volunteers. This says to me that the lawyers were public-spirited, and courageous.”

Is the right better served, I ask, by toning down its discontent with the Obama administration? Conservatives, insists Starr, “would do better by focusing on the merits of issues and doing so in a civil, respectful manner. The world is too much of a shouting match. The upshot is that all too frequently in the contemporary debates, values of civility have been seriously eroded. But I recognize that attack ads do their grisly work quite effectively in achieving certain less-than-noble goals. At a minimum, they generate attention, energy, and fervor—but in this instance at a cost of spawning disrespect for an institution that is extraordinarily important for the well-being of the American people.”

Starr believes that both right and left need to give the other side the benefit of the doubt. “Americans of all stripes truly love their country and want to see it do well. I thus totally disagree with my friends who sweepingly condemn those on the left side of the political spectrum as being, somehow, unpatriotic. Not so. We can disagree, vigorously, without indulging in an assault on what might be presumed to be an underlying motive. And our friends on the left would do well to tone down the unseemly rhetoric of dismissive disdain and moral superiority. That’s not very pretty. And it wins over no converts.”

Janet Reno decided “promptly and correctly that the Lewinsky matter had to be investigated. It was an unhappy but straightforward application of the independent-counsel law.”

Our conversation turns next to Ken Gormley’s new book, The Death of American Virtue: Clinton vs. Starr, in which Starr is described by Gormley as having said that if he ever saw President Clinton again, he would say, “I am sorry that it all happened.” Starr declares that the apology has been “somewhat mischaracterized,” and offers a clarification: “I have frequently said that it was very unfortunate for the country that this chapter happened. I have also said that it would have been better if Janet Reno had appointed some other person to conduct the investigation.

“The attorney general could have requested the special division of the U.S. Court of Appeals to appoint a new independent counsel. Instead, she referred the Lewinsky phase of the investigation to an already sitting counsel.”

Did Starr ever ask Reno not to be given the Lewinsky phase? “No,” he says. “It would have been difficult and impractical for her to have appointed someone else, given the exigencies of the moment. There would have to have been someone ready and willing—in the wings—to take on this sort of fast-moving assignment.”

Reno decided “promptly and correctly that the Lewinsky matter had to be investigated. It was an unhappy but straightforward application of the independent-counsel law that Congress had passed. The president’s actions had to be investigated—it would have been lawless not to have done so. I simply wish it had taken six months, rather than five-plus years.”