Final Report, Final Thoughts

Uncovering and writing about the Office of Special Counsel (OSC) investigation that took place between February 16 to December 6, 2000, conducted by Jo Ann Harris and Mary Harkenrider was the most challenging project I have ever undertaken.

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In looking back at the more than 300 e-mails related to this project, I was surprised to discover that I first reached out to Jo Ann Harris on September 26, 2011. I submitted my Freedom of Information request in October of 2012. On May 1, 2014, I received a copy of the Report Harris and Harkenrider had submitted almost 14 years earlier to then-Independent Counsel Robert Ray.

But receiving the Report turned out to be just the beginning of what ultimately became a detective story in determining what happened after Harris submitted her Report to Ray. While in regular contact with Harris for the next several weeks, the question I kept coming back to was: Why did Harris along with others believe the Report was sealed? Did the Archives make a mistake?

It took five and a half months of additional interviews with Harris, as well as Archives searches to reveal that there had been incredible tension between Harris and Ray. As additional documents disclose, Ray went back on his agreement with Harris to make either her full report or a Summary available to the public. An OIC Issues Memo from Harris to Deputy Independent Counsel Keith Ausbrook states: “In Bob’s words when we originally discussed my role and the way in which we would deal with any disagreement: ‘put both out there [meaning the Report and Ray’s rebuttal] and let the public decide.’ ”

From early May, I was in continuous contact with the Archives in an effort to learn as much as I could about OIC’s efforts to essentially bury the Report. I interviewed four former OIC attorneys. Two of them would not go on the record. All, but one (the attorney called out in the Report), did not advance any additional knowledge about the Report.

While Harris’s direct mandate was to investigate “allegations of professional misconduct by the office of independent counsel,” and in particular, the attorney who led the “brace” of Lewinsky, I spent a great deal of my own thinking looking at the leadership of Independent Counsel Ken Starr. This was a man who had held a number of prestigious positions, including Solicitor General of the United States and Judge of the District of Columbia Court of Appeals, and was highly regarded as an appellate lawyer and jurist.

However, I am not constrained by the policies of OPR. In a broader ethical context, Ken Starr deserves the greatest share of responsibility for the Lewinsky matter. Let me explain why.

1. Starr should have consulted with ethics advisor Sam Dash on this issue. According to Harris, “Dash was rarely consulted and he was never consulted on the Lewinsky issue,” pre-hotel “brace.”

2. Starr appears to be driven by political motivations.

In Dash’s resignation letter to Starr, he states: “… by accepting the invitation of the House Judiciary Committee to appear before the committee and serve as an aggressive advocate for the proposition that the evidence in your referral demonstrates that the President committed impeachable offenses. In doing this you have violated your obligations under the Independent Counsel statuette and have unlawfully intruded on the power of impeachment which the Constitution gives solely to the House. … By your willingness to serve in this improper role, you have seriously harmed the public confidence in the independence and objectivity of your office.”

Further, in Appendix C, section V, of Ray’s “Final Report,” attorney Francis Mandanici was one of several individuals who filed complaints alleging prosecutorial misconduct regarding Ken Starr and OIC. Ray writes “…the complaints were all dismissed as without merit…”

In 18 pages of rebuttal comments, however, Mandanici states: “…it is not only ironic but outrageous that Starr was obsessed with investigating and exposing what many would consider the private matter of Clinton’s sex life, but the Office of Independent Counsel was successful at hiding an ‘ethical inquiry’ filed against it by six federal judges. The six judges apparently were among the complainants who sought the appointment of a ‘special counsel to investigate’ the special prosecutor’s office.

“But even if Starr’s resignation,” Mandanici writes, “had nothing to do with the ‘ethical inquiry’ by six federal judges, Ray’s conclusions in his Report that all the ethical charges against Starr were without merit is a conclusion that ignores not only reality but two federal judges who stated that Starr suffered from at least an appearance of a conflict of interest involving [billionaire Richard Mellon] Scaife [“who funded Starr’s deanship” at Pepperdine University]. Ray’s conclusion also ignores Starr’s personally chosen ethics expert who stated that Starr violated the Independent Counsel Act and ‘abuse[d]’ the powers of his office by aggressively advocating for the impeachment of President Clinton.”

3. Ken Starr has been described by many as an academic, brilliant law guy, but was so focused on getting Clinton that he disregarded other options in his handling of the Lewinsky matter when presented to him by a Department of Justice attorney from the Public Integrity Section.

Examples:

a) “[The Public Integrity Section attorney] also raised DOJ’s regulation regarding contacting a person who has a lawyer. [The attorney] says he told OIC lawyers that if he were they, he would not go forward without first seeking the guidance and protection provided by DOJ through the ‘Margolis Procedure,’ a process established by the Department to help federal prosecutors evaluate issues involving the regulation proscribing contacts with represented people, on a case-by-case basis. (Harris Report, pages 22-23.)

b) “Starr says he knew [the DOJ attorney from Public Integrity] and respected his views, and was pleased that OIC and DOJ seemed to be working cooperatively together, although he is quick to say that whatever decisions were made during this interim period were in fact OIC’s, not [the P.I. attorney],” (Harris Report, page 28.)

Starr misinterprets the attorney’s unwillingness to veto their actions for cooperation. “[The P.I. attorney] told [Harris and Harkenrider] several times of his discomfort in these meetings with OIC and reiterated that because this was OIC’s investigation and in light of the independence required by the law, he did not feel he should, or could, stop them from any course of action,” (Harris Report, page 33.)

c) “Without necessarily disagreeing with OIC’s analysis of her representation, however, [the P.I. attorney] was suggesting a way to allow OIC to clarify the status of Lewinsky’s representation before proceeding further,” (Harris Report, page 31.)

4. Finally, in terms of overall decision-making, the buck stops with Ken Starr. When offered a number of options regarding Lewinsky, Starr chose only those put forth by his own staff. “Your staff did not serve you well,” Harris told Starr.

As for the attorney who bore the true cost of Starr’s mishandling of Lewinsky, Harris and Harkenrider state early in their Report: “We are concerned that our finding of poor judgment… will be wrenched out of context and magnified several-fold to the unwarranted detriment of a man who is by all accounts a dedicated, talented public servant who, in this one instance, simply did not exercise the good judgment expected of federal prosecutors.”

This “dedicated, talented public servant,” is now in private practice.

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