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Starr: A Reassessment by Benjamin Wittes (Yale University Press, 251 pages, $24.95) We are deep into the age of chutzpah. Doris Kearns Goodwin and Stephen Ambrose put their names on books and then pretend that they don’t know what is actually in them, as if any author, reading that manuscript the final time before submitting it, does not know exactly what he or she wrote and what was cribbed. And then there’s Ken Starr, who put his personality front and center at every step of his tenure as special prosecutor but who now has the temerity to argue that it was the special prosecutor statute that compelled him to understand his role as that of a truth commissioner whose eccentric, over-the-top responses to White House resistance, however expected or indeed natural, stemmed from the search for truth and the need for purity to will out. That at least is the argument that Benjamin Wittes of The Washington Post (and previously of Legal Times) dutifully records in his “Starr: A Reassessment,” based largely on hours of post-crisis interviews with Starr. Time, distance, and some new information have made revisionism possible for this national ordeal, which kept the country from seeing straight. Starr, as one of the two leads in our national drama, is neither the sinner nor the saint that rival camps have portrayed him as. That, at least, is Wittes’ premise. All the commentators, pundits, and editorialists did not help much at the time, giving only slanted views, both emotionally and ideologically charged. The books that naturally followed have had their own shortcomings. Books by Jeffrey Toobin, Michael Isikoff, Richard Posner, Susan Schmidt and Michael Weisskopf, Joe Conason and Gene Lyons, and Bob Woodward, among others, tended to be too narrow, based only on public documents, merely narrative, or politically biased. Wittes’ idea was to take time, distance, and his on-the-record skepticism of Starr and his investigation and add to it material from Starr himself, using him, he tells us, as an untapped resource. The result was the 10 hours of what we’re told were frank, candid, and revealing conversations in which Starr willingly, if not eagerly, fessed up to mistakes, but, in the end, maintained that he had done the right thing. Wittes tells us that his aim in these conversations was to determine whether Starr’s reputation as an out-of-control independent counsel was fair. He does this, in a surprise move, by looking at Starr’s investigation “through the particular lens of [Starr's] understanding and interpretation of his role under the independent counsel statute.” Starr, for Wittes, becomes neither saint nor sinner but merely a man doing a job the way he thought it was to be done. The problem, Wittes concludes, is that Starr fundamentally misinterpreted the meaning of the independent counsel. Wittes reminds us that Starr had a distinguished history of thinking the statute to be a mistake, making his interpretation and application of it all the more rich in irony. The good soldier Starr not only put aside his opposition to the statute when appointed but also read the statute with a vengeance, probing both its letter and spirit to arrive at the rather startling conclusion that what the statute really authorized in the independent counsel was a truth commission and truth commissioner of the sort South Africa used to help cleanse itself of its soiled apartheid conscience. A truth commissioner, motivated by the quest for just that — truth — is entitled, in Starr’s reading, to wiggle free of traditional prosecutorial restraints and move pell-mell to the jugular. Resistance is not only futile, but also punished. The truth commissioner expects not just cooperation but a kind of submission, so when Starr met with fierce, surely partisan, but nonetheless expected opposition from the White House and those tied to it, the legally sanctioned moral authority of the truth commissioner was required to soften up targets and deliver the message that resistance was futile. How else can you explain what I did, Starr implicitly asks. It’s not that I’m sensitive to criticism, the argument runs, it’s that anyone who questions the integrity or methods of the truth commissioner/independent counsel is obstructing my very charge at getting at the truth. Such an argument would explain much that has baffled us to date. It would explain the need to bring serial prosecutions against Webster Hubbell, to pit Lewinsky mother against daughter, to countenance, if not honor, the despicable betrayal of a friendship with surreptitious tape recording, to go after those questioning the motives and methods of the independent counsel, and to take on the unauthorized role of becoming Congress’ implicit impeachment investigator, and prosecutor. Starr’s argument will take you pretty much anywhere you want to go. The problem with Wittes’ book is that he accepts Starr’s assertion of the argument at face value. To his credit, Wittes does think that Starr made a serious error in interpreting the statute as he did and argues that this mistake led to the calamitous results of his investigation. But not recognizing that Starr’s argument is nothing more than post hoc rationalization is to miss the central point of the Starr enterprise. It’s not enough just to challenge Starr’s argument that he had all along interpreted the statute as authorizing a truth commission by pointing out that he had at best made a few stray references in speeches to the quest for truth that was the spirit of the independent counsel statute. If Starr thought that he had been hired as a truth commissioner, he would have said just that when pressed to defend himself at any number of times during the investigation. To think that Starr had come to this unique interpretation of the statute, but didn’t think that the country should know this to perhaps debate the point is just too much to accept. It would read any sort of accountability out of the statute. The price Wittes pays for not rejecting Starr’s rather lame argument it that it keeps him from confronting the elephant in the room — Starr’s personality. That Richard Posner in his book on the scandal, “An Affair of State,” said we should look to Starr’s personality makes Wittes even more culpable for not exploring the idea. Starr likely believed all of what he has said about the need to ferret out the truth at all costs. It’s just that the truth commission rationalization came later. Starr was manifestly ill-suited for the independent counsel’s job, proving this nearly every time he tried to explain himself. His talk of defiling the temple of justice and the like all pointed to his inability to proportionalize, to exercise a professional prosecutor’s responsibilities. His absolute belief in his own virtue, his perfectionism, and his insistence on always being right all doomed him from the start. But of course this is likely why he was chosen. His insistence on being right likely led him to give Wittes his 10 hours of interviews. What is ironic, of course, is that in the same way that Starr’s other grand attempt to demonstrate his virtue — his interview with Steven Brill in the premier issue of Content magazine — blew up in his face, this latest attempt also demonstrates the opposite of the message Starr intended: that he, or at least aspects of his personality, are out of control. What is especially ironic is that in Starr’s own former world of judging there have been conspicuous examples of judges whose personalities hijacked their jurisprudence when they felt slighted. Justice Felix Frankfurter, warm liberal who turned petulant conservative because the Court did not see him as the leader he thought himself to be, is perhaps the best example of this. Ironically, it was Frankfurter who noted that “the true face even of a public man is his private face.” Wittes’ book does in some ways lead to revisionist thinking about the Lewinsky mess. In the aftermath of the terrorist attacks on New York and Washington, it now becomes difficult to understand why the nation became so transfixed by the scandal. A petty sexual scandal followed by Clinton’s reprehensible conduct just don’t seem all that important anymore. The scandal may have the effect of showing us just how self-absorbed we had become as a nation. That we hired in Starr a self-absorbed independent counsel is perhaps fittingly ironic. William Domnarski practices law in Minneapolis and is the author of In the Opinion of the Court (University of Illinois Press, 1996).

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