The Political Interest

By Michael Kramer

It isn't too late for Kenneth Starr to quit as the new Whitewater independent counsel. And he should. In fact, it's the Republicans rather than the Democrats who should be urging his resignation. Consider the two possible outcomes of Starr's investigation and the way in which the White House will spin them. If Starr determines the Clintons did something wrong, he'll be tarred for partisanship. If he exonerates them, the Administration will crow that even a conservative Republican found the Clintons innocent. "That sounds sensible," says a Republican Senator, "but if Starr slams Clinton, we think the facts will drown out the cries of foul." The Democrats apparently agree. Despite insisting the Clintons are clean -- and thus shouldn't sweat any inquiry -- a growing Democratic chorus is clamoring for Starr's resignation. So are several major media outlets, including the New York Times, which last week concluded that Starr has a "duty" to quit.

That's right, but not because Starr is incapable of conducting a fair inquiry. His partisan political activities are small-bore. His integrity and honesty have never been seriously questioned. When even a dues-paying liberal like the legal director of the American Civil Liberties Union says, "I'd rather have Starr investigate me than almost anyone I can think of," the case for bias is virtually closed.

What's truly troubling, however, is the chummy meeting in the Senate dining room that took place three weeks before Starr was chosen. On July 14 David Sentelle, who heads the three-judge panel that fired Robert Fiske and retained Starr, had lunch with Senator Lauch Faircloth, the North Carolina Republican who led the charge for Fiske's dismissal. To hear Faircloth tell it, he and Sentelle (and Senator Jesse Helms, who was also present) talked about Western hats, old friends and prostate problems. Sentelle, however, has said only that "to the best of my recollection," he and the Senators didn't discuss the imminent selection of a new counsel. "Those words have been criticized at the Whitewater hearings as a convenient way for people to forget what happened," says New York University Law School professor Stephen Gillers, an expert on legal ethics. "And now we have a federal judge choosing someone to investigate the President who claims he can't definitively recall an event that happened only three weeks before."

The problem here concerns appearances. The independent-counsel law, enacted 15 years ago in the wake of Watergate, was a response to the public's growing distrust of its leaders. The law accepted the assumption that an Administration should not investigate itself. It understood that a government deriving its legitimacy from the consent of the governed must not only act forthrightly but appear to do so. Indeed, the Sentelle panel adopted this exact rationale to ax Fiske, who had been appointed by Clinton's Justice Department. The statute, the judges said, "contemplates an apparent as well as an actual independence on the part of the counsel." That apparent independence was compromised when Sentelle met with Faircloth and Helms.

The rhetorical war over Whitewater, in which some fear a witch-hunt and others a whitewash, won't be quelled until Chief Justice William Rehnquist, who appointed the Sentelle panel, chooses another group of jurists who can start over. The predicate for that action is Starr's retirement. Shortly after his selection, Starr said, "The reality and appearance of fairness are very important to the entire activity, and I intend to live up to that." At this point, he can best live up to that by stepping down.

With reporting by Andrea Sachs/New York