by Ken Starr
Hickman went with Miguel out to Fort Marcy Park to check out the scene, which Miguel said he knew like the back of his hand. It was icy. Miguel couldn’t find the location. Hickman slipped and fell, seriously injuring his back. It was a disaster.
Angry that he was being challenged by his supervisors, on January 17, 1995, Miguel announced that he quit. His irresponsible comments were later spread as “proof” there was a cover-up of a conspiracy reaching to the White House. All nonsense. But some took his stories at face value. Hickman began to receive preprinted anonymous postcards—over three hundred of them—with the words: “Bring back Miguel.”
I rolled my eyes in disbelief when I saw the postcards, which seemed to have been promoted by an advocacy group based in Southern California. This was madness, yet another illustration of the paranoid strain in American politics. It was a grim reminder that this investigation had to be comprehensive and complete. We could not afford to leave any stone unturned, but the investigation also had to be conducted professionally, consistent with DOJ policy.
Honest differences of opinions often occur in investigations. That was one reason I stressed the deliberative process, the roundtable discussions that some prosecutors and investigators thought slowed things down. But a rogue prosecutor given free rein in a grand jury can do serious damage to the integrity of the process. I was thankful that of the dozens of prosecutors and agents who worked with the OIC under my supervision, I experienced many differences of opinions, but few serious problems.
We interviewed numerous witnesses in the grand jury, including U.S. Park Police officers, Rose Law Firm colleagues, Foster’s wife, the Clintons, and many White House staffers, including Linda Tripp, the last White House employee to see Foster alive.
An exhaustive review of the evidence confirmed what the Fiske team had concluded back in 1994: Vince Foster had taken his own life in Fort Marcy Park while seated on the Civil War berm where his body was found.
Like Rodriguez, conspiracy theorists postulated that Vince had been murdered elsewhere, and his body moved to the remote location. The posthomicide movement of the body, it was further theorized, explained why no blood had been found at the scene. The evidence pointed in a different direction. Foster’s body bag, when opened at the morgue, was awash in his blood.
Our findings resulted in a painstaking, thorough, and lengthy report, drafted primarily by Brett Kavanaugh, a key member of our brain trust. In contrast to the skeptical reaction to Fiske’s investigation, our follow-up work proved to be the definitive word on the cause of death. Obviously, we couldn’t lay entirely to rest far-fetched theories (we could never find the bullet), but we eradicated any reasonable doubt as to the cause of death: suicide by his own pistol.
In addition to investigating Foster’s death, we were also able to settle the other matters he’d been involved with—the White House Travel Office scandal and the issue of the FBI files. In contrast to the criminality at the core of the Little Rock cases, both these matters had the makings of arrogance and abuse of power in a political sense. But was there a potential crime lurking in either the Travel Office saga or in the FBI files scandal?
Fiske had first tackled “Travelgate” because of the Vince Foster connection. A formal federal investigation had culminated in an ill-conceived federal criminal indictment by Main Justice of the hapless Billy Dale, accused of misdeeds by friends of the Clintons’ who wanted his job.
Eventually a federal jury in Washington acquitted Dale. Jury sentiment flowed to the little guy, who had been cashiered by the high-handed Arkansans at the direction of the new First Lady. The ordeal cost him money and his reputation.
Months of investigations followed, by Congress and the OIC. The biggest challenge facing both the inquiry on Capitol Hill and our own investigation was a monumental lapse of memory. Senior officials of the White House could, oddly, recall little about the Travelgate episode.
One telltale document, a memorandum authored by David Watkins, director of White House personnel, set forth a damning narrative that the decision to fire the travel team lay squarely at the feet of Hillary, egged on by Harry Thomason. There would be, in Watkins’s description, “hell to pay” if all seven civil servants’ heads didn’t roll.
Hillary had her usual amnesia. In the pink press conference in April 1994, she had remembered elaborate details about how she had turned a thousand dollars into a hundred thousand dollars trading in cattle futures by reading the Wall Street Journal. This was a preposterous claim, given the way markets work, but at least she “remembered.” When it came to official investigations, as opposed to press conferences, Hillary recalled virtually nothing.
Watkins had intended his tell-all memorandum for Chief of Staff Mack McLarty, who dismissed the document as factually wrong. What was not disputed, however, is that the firings were uncalled for, that several employees were soon offered reinstatement, and that the Thomason-inspired allegations of kickbacks and rebates were never corroborated.
Even so, as we surveyed the facts, the mean-spirited behavior by the Clinton White House did not amount to a federal crime. It certainly revealed Hillary’s character and her contempt for regular order. But a reasonable prosecutor would consider perjury in this context a hard hill to climb.
We chose, prudently, not to undertake the effort. We were not convinced we could meet DOJ standards to justify bringing possible charges for the grand jury’s consideration.
Our involvement in “Filegate” came independent of Fiske’s investigation.
On June 18, 1996, Janet Reno assigned the investigation of the Clintons’ inappropriate requisition of FBI files to Louis Freeh, director of the FBI. But he realized that his agency had a conflict of interest, that “egregious violations of privacy” had been committed by both the FBI and the White House. Three days later, he kicked it back to Reno, who assigned the investigation to our office.
We did not welcome the add-on, as it would take time and resources. But we knew that Reno had made a sensible decision to send the matter our way. We had assembled an extraordinarily capable team of investigators and prosecutors, and we were well equipped to figure out if this issue was bureaucratic incompetence or something more sinister.
On the issue of the FBI files, our job was to determine whether a crime had been committed, such as a violation of federal laws protecting privacy, by Craig Livingstone and his aide Anthony Marceca, a White House security worker, in ordering FBI background-check files.
There proved to be lots of smoke but no fire. It was indeed, as the White House claimed, a bureaucratic snafu, occasioned by the Secret Service’s use of outdated materials (lists of individuals who had coveted access to the White House complex) and exacerbated by Livingstone’s ineptitude. Dependent upon the Secret Service (not the FBI) for the list of employees for whom background-check files were needed, the inexperienced team of Livingstone and Marceca had been led astray.
Then again, they failed to spot the fact that forbidden files from the FBI’s vaults had landed in their office. Experienced professionals wouldn’t have made the mistake, and would promptly have seen that a file for Republican secretary of state James Baker had no proper place in the Clinton White House.
The ultimate takeaway of this Keystone Kops episode was that the Clinton White House was cavalier in its approach to staffing a hypersensitive position within the Executive Office complex. The Clintons’ arrogance was costly. Even in the White House, there are times when it is far better, and more prudent, to entrust certain assignments to career employees who have the requisite training and experience to handle them wisely and professionally.
Instead, replacing long-standing employees with characters who don chicken costumes to disrupt a presidential campaign speech reflected an abysmal understanding of the seriousness of the tasks at hand. In her own way, Hillary admitted as much in her pink press conference, the closest she ever came to a mea culpa.
> Exercising poor judgment is exactly that, but it is not a crime.
In contrast to the Travel Office scandal, there was no significant evidence that Hillary or the president had personally been involved in the decision to hire Livingstone. Of particular importance, there was no evidence whatsoever, including the results of an elaborate forensics analysis, that the president or Hillary had ever touched the files.
Unlike Travelgate and Filegate, a third Washington-focused subject matter of the OIC represented a direct connection in the Whitewater tale of two cities.
It was a tale frequently told, of unscrupulous or imprudent bankers playing fast and loose with federally insured funds, making bad loans, contributing to real estate bubbles destined to collapse, and at times engaging in outrageous self-dealing.
The Resolution Trust Corporation was a special limited-life entity created by Congress within the Treasury Department during the 1980s to address the nationwide debacle of failed savings and loan associations. The hero of the RTC saga was senior criminal investigator Jean Lewis.
Although much maligned by the mainstream media after it became known she was a conservative Republican, and raked over the coals in Senate hearings, Jean was a thoroughly professional and scrupulously honest investigator.
Based in Kansas City, Jean and several colleagues had pored over Madison Guaranty records and found evidence of criminal wrongdoing. Their conclusions were dismissed by bureaucratic higher-ups, and eventually rejected by the DOJ. The Washington experts concluded that there had only been mismanagement and ethical lapses, but that the record did not demonstrate actual criminality.
They were all dead wrong. Jean Lewis was right. Her insightful analysis was taken seriously by Fiske and his team, then conclusively demonstrated by the 825 trial. The felony convictions of Jim and Susan McDougal provided Jean and her colleagues with the ultimate professional vindication.
Along with congressional committees, we traveled the path pioneered by Bob Fiske and explored with fresh eyes whether political pressure had been brought to bear from the Treasury Department to scuttle the Madison Guaranty investigation.
The appearance of meddling by superior officers gave rise to a furious backlash on Capitol Hill directed at one of President Clinton’s close friends, Roger Altman, a Georgetown classmate.
As the number-two person at the Treasury Department, Altman was yet another casualty in the early years of the Clinton administration. His testimony on the issue of political interference with career investigators such as Jean Lewis irritated members of Congress of both parties. In a partisan town, bipartisan sentiment emerged that Altman should resign. He did. The same for Jean Hanson, the general counsel of the Treasury Department.
We determined that the facts were sufficiently elusive, with ostensible judgment calls along the way, that criminal charges, specifically obstruction of justice, should not be sought. The result was a political setback for the Clintons, just as with the Travel Office and the FBI files matters, but nothing worse. All things considered, this was yet another example of the Clintons’ political ham-handedness and contempt for the processes of government.
Reputations were being impugned in the early going of the first Clinton administration, and a life had even been lost. But in contrast to the criminal fraud in Arkansas, indictments in the Washington cases were simply not appropriate. We stayed our hand.
CHAPTER SIXTEEN
Pepperdine Invitation
What I had initially anticipated to be a six-month sojourn in Little Rock, taking a second look at a “failed land deal in the Ozarks,” had turned out to be a long, three-year slog.
Fiske’s ominous advice to move—“You’re going to be here for a long time”—had proved prophetic.
As the investigations seemed to be winding down in both Little Rock and Washington, I began thinking about the future.
In early 1997, I got a call from David Davenport, Pepperdine University’s charismatic young president. David and I had met back when I was serving as solicitor general in George H. W. Bush’s administration. Attorney General Thornburgh had asked me to stand in for him as a judge at a Pepperdine law school moot court competition. I was glad to and enjoyed both the competition and the reception before catching a red-eye flight so I could be in my place as a bleary-eyed Sunday-school teacher in McLean the next day.
On that quick trip to Malibu, I had been hosted by the dean of Pepperdine’s young law school, Ron Phillips, a fellow Texan. As we had talked, I had a sense that Dean Phillips was probing a bit beyond natural curiosity. As it turned out, Ron was engaged in succession planning. He knew of my love of teaching, and my keen interest in legal education.
During my days as a Supreme Court clerk, I had interviewed with representatives from different law schools who arrived to recruit potential faculty members. I tried to kick way beyond my coverage back then, including worming my way into an interview with Yale’s Dean Harry Wellington, and a faculty member destined to serve on the Connecticut Supreme Court, Ellen Peters. I thought I had done a fabulous job in the interview. The Yale Law School worthies obviously didn’t agree with my rosy self-assessment.
At any rate, I had decided that I wanted to be “a real lawyer” before moving into the classroom or college administration. I was mindful of the wisdom of my boss, Chief Justice Burger: Do we really want our medical school professors to be individuals who, no matter how smart, have never practiced medicine? Why should law professors be any different?
The Chief’s observation made perfect sense to me, and I had put off pursuing a teaching career. I had not, however, stopped dreaming of it. After the moot court experience, I was invited back to the Pepperdine campus in 1993 to teach a two-week summer course in constitutional law. I enjoyed socializing with the faculty, and balanced practicing law remotely with teaching a two-hour seminar four days each week. It was bliss. The Starr kids used that sojourn in “the ’Bu” as their summer extravaganza vacation, enjoying the university’s Carbon Beach pink cottage—next door to Janet Jackson’s beach house.
My involvement with Pepperdine dropped off a bit once I was appointed to the OIC. Yet the dreaming continued. For several years, Davenport and I talked about his intriguing idea to create a public policy school focusing on the interplay of the private sector, including the nonprofit world, with the fashioning of public policy, particularly at the state and local levels.
Then the call came.
“Ken, I would like you to think about becoming the founding dean of the School of Public Policy.”
David upped the ante.
“You would also serve as dean of the law school. It’s doing well, and you would simply carry on what Ron Phillips has built. But you would at the same time be the founding dean at the new public policy school.”
The idea was not only bold, it was extraordinarily creative. I loved the highly ambitious concept. It would mean a return to Southern California, a part of the world Alice and I greatly enjoyed. I thought I could handle the challenge of wearing two administrative hats when I had never donned a single one.
My thoughts ran both to the investigation and my family. Our three school-age children had become “lifers” at the Potomac School. Alice continued to flourish in her successful career in Northern Virginia. All this would be totally disrupted, but the family was fully supportive and encouraging. Here might be a spectacular opportunity for all of us.
I had fallen in love with Pepperdine, with its gorgeous campus overlooking Santa Monica Bay, and deeply respected Davenport. I admired Pepperdine’s unapologetic Christian mission. It looked as if our family might be able to live on campus, and thus instantly be part of a vibrant community.
As for the investigation, I reflected on the toll exacted by the constant barrage of personal attacks. I had been too controversial even to sit in court. My persona non grata status in Arkansas had stuck in my craw during those long months of 19
96. The Perry County Bank setback lingered in my memory. It was time to go.
The Pepperdine opportunity seemed providential, an elegant way to exit the investigation and take on an entirely new challenge. Manna from heaven with a couple of quail to go along with it.
As a bonus, my jogging path would shift from Northern Virginia woods and creeks to Zuma Beach and the most scenic track in the world, right in the heart of the Pepperdine campus overlooking the Pacific.
I confided in a handful of individuals in the OIC, in particular Hickman Ewing. He didn’t seem at all surprised and was supportive. While the decision was not mine to make, nor were there any guarantees, I planned to recommend to the Special Division that Hickman be appointed as my successor when I left.
With great excitement, I informally accepted the job. The school wanted me to arrive by August 1, 1997, so all that remained was for me to announce my upcoming departure.
To my shock and chagrin, Tom Dawson, my trial team leader in the Jim Guy Tucker tax and bankruptcy fraud case, marched into my office in Little Rock after my announcement and delivered an announcement of his own: “I signed up to work for you. If you leave, I leave.”
I had a minirevolt on my hands. I took his reaction as a compliment, if an unwelcome one. It was a jarring return to my personnel nightmare from the Bob Fiske transition three years earlier, when his lawyers exited en masse.
In retrospect, I should have consulted more broadly with team members before announcing my intention to leave. I had only spoken with the most senior prosecutors in Little Rock and Washington. My task as independent counsel turned out to be deeply personal and relational, not simply institutional. I would continually refer to the Office of the Independent Counsel as an institution, if only a temporary one.