Beyond His Ken.

Starr: A Reassessment, by Benjamin Wittes (Yale, 256 pp., $24.95)

Remember when James Carville called Kenneth Starr a "yahoo" who spent his time singing hymns and plotting "to wash all sodomites and fornicators out of town"? Remember when Maureen Dowd portrayed Starr as a sex-mad Puritan who couldn't stop thinking about Monica Lewinsky's thong underwear? Remember when every liberal commentator worth a spot on cable TV compared Starr to the heartless Inspector Javert?

In this new book, Benjamin Wittes, an editorial writer for the Washington Post, revisits what he calls the "demonic caricature" of Starr that emerged during the Lewinsky scandal. He also reviews the far less popular opinion, held by some on the right, that Starr was a "martyr to the rule of law." Concluding that both visions are wrong, Wittes tries to come up with a Third Way of looking at Starr's tenure as independent counsel.

And what he comes up with is this: Starr was "simply the wrong man for the job" of investigating Bill Clinton. It's hard to imagine Carville, Dowd, or any of Starr's enemies disagreeing with that, but Wittes works hard to make a more complex argument than the demonizers did in 1998. Starr, he writes, was unsuited for the task not because he was a religious zealot or a sex maniac or the leader of a right-wing coup d'etat -- Wittes defends Starr against all those charges -- but because he fundamentally misunderstood the independent-counsel law. Wittes writes that Starr, rather than seeing the independent counsel's job as "a conventional criminal investigation," conceived of it as "a kind of truth commission." That misconception -- "Starr's original sin" -- led Starr to believe that he had a "license to conduct the broadest of inquiries, an investigation that he never intended to use chiefly as a vehicle for punishing crimes." The result was a "terrifying probe."

Wittes writes that after impressive early success -- in which the independent counsel won fraud convictions against Clinton business partners Jim and Susan McDougal, along with then Arkansas governor Jim Guy Tucker -- Starr's misreading of the law caused him to take several wrong turns. First, he prosecuted Susan McDougal for criminal contempt of court after she refused to answer his questions. Then he repeatedly indicted Webster Hubbell, the Clinton crony and former top Justice Department official. And finally, he mishandled the Lewinsky matter, passing up a quick immunity deal with Lewinsky and instead embarking on a grueling battle with the Clinton White House.

Wittes argues that, in each instance, if Starr had not been so obsessed with finding the truth -- as opposed to simply deciding whether criminal charges were warranted -- he would have evaluated his situation, decided that there were some facts he simply could not uncover no matter how long he tried, and moved on. Susan McDougal, Wittes writes, "had emphasized for the better part of two years that she would never cooperate with Starr's team," and Starr should have let it go at that. Likewise, Hubbell was clearly not inclined to rat on the Clintons. And Lewinsky? Starr's attempts to learn what happened in that case "represented a triumph of truth-commission values over prosecutorial interests."

But did they? Wittes's need to fit each case into his truth-commission critique leads him to underemphasize the real-world dilemmas in which Starr found himself. In the case of Susan McDougal, for example, Starr brought her before a grand jury, gave her immunity, and asked her a simple question: "To your knowledge, did William Jefferson Clinton testify truthfully during the course of your trial?" McDougal refused to answer, and Judge Susan Webber Wright ordered her jailed for contempt of court in the hope that she would change her mind about testifying. She didn't, and remained behind bars for 18 months. By then, prosecutors had found new evidence, including a Whitewater-era check with the words "payoff Clinton" on it, and brought McDougal back before the grand jury. "You do not have any right to ask me," McDougal said. "Mr. Starr should resign. That's my only answer to you."

One need not be a truth commissioner to believe that the McDougal case was a particularly egregious example of contempt of court. Starr charged her with two counts of criminal contempt and one count of obstruction of justice. In the end, a jury acquitted her on the obstruction count and deadlocked on the two contempt charges, and Starr decided not to retry the case. But a strong argument can be made that in indicting McDougal, Starr acted to protect the interests of justice, and not to satisfy his truth mania.

As for Hubbell, Starr learned -- after Hubbell pled guilty to bilking his law-firm clients -- that Hubbell received hundreds of thousands of dollars in White House-arranged, no-work business deals. At the same time, Starr's lawyers believed Hubbell was not fully living up to his agreement to cooperate with prosecutors. One need not be a truth commissioner to want to find out whether there is a connection between these two facts. While prosecuting Hubbell on tax charges was a bad idea -- Starr was wrong to try to use documents that Hubbell had given him under an immunity deal -- Starr's 1998 indictment of Hubbell on Whitewater charges, which Wittes believes proved that Starr's pursuit of Hubbell had "lapsed into absurdity," was in fact a solid criminal prosecution. Hubbell pled guilty.

Finally, in the Lewinsky case, Wittes concedes that Starr was confronted with evidence of "real criminality." Starr also had to deal with an emotionally volatile witness (Lewinsky) represented by an erratic and irresponsible lawyer (William Ginsburg), protecting a powerful target (Clinton), who resisted Starr with the help of two key witnesses (Vernon Jordan and Betty Currie) who almost certainly did not tell Starr's grand jury all they knew. Yes, Starr aggressively pursued the truth. But if he was to evaluate the core allegation -- that Clinton lied under oath and acted with Jordan and Currie to obstruct justice -- he was going to have to ask a lot of people a lot of questions.

Although Wittes takes pains to point out that in each instance Starr had a good-faith, logical reason for his actions, he concludes that Starr's truth-commission approach caused him to overreach. "Neither the statute itself nor the legislative history of the original special- prosecutor legislation explicitly describes any truth-seeking function," Wittes writes. "Congress meant to create an office . . . that would conduct a traditional, albeit thorough, prosecutorial inquiry."

But how should Starr have investigated the accusations against the president and his circle without spending a great deal of time and effort trying to learn what was true and what was not? Remember that, for the most part, Starr was investigating allegations of perjury and obstruction of justice. The entire investigation hinged on whether the president and his friends had told the truth.

In addition, contrary to Wittes's argument, there is some evidence to suggest that Starr was doing precisely what Congress intended when it passed the independent-counsel law as part of its post-Watergate reforms in 1978. The law's authors were particularly concerned about perjury and obstruction of justice because they believed those were the crimes that future Nixons might engage in to keep secrets from the American people. In fact, Section 593(b)3 of the law, which laid out the scope of the independent counsel's jurisdiction, gave him the authority to prosecute any crimes that he might discover in the course of his investigation, "including perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses." These were the only crimes specifically mentioned in the statute -- and they all involved concealment of the truth.

Given that, one could make a pretty strong argument that Congress intended the independent counsel to be in significant measure a truth commissioner. It's a point Wittes comes close to conceding when he writes, with almost painful obviousness, that "Starr can reasonably hypothesize that Congress must have envisioned at some level that an investigation of the president involving possibly impeachable offenses would be a search for the truth about those allegations." Well, yes, it would.

Wittes concludes with a discussion of how future high-level investigations will work in the absence of the independent-counsel law, which expired in 1999. Wittes is not entirely happy that the statute is gone -- after all, in his view, it was Starr's misreading of the law, and not the law itself, that was the problem. The law has now been replaced by procedures for the attorney general to appoint an old-style special prosecutor who will be more accountable to the executive branch. But there's no reason to believe that Wittes will be any happier with future investigations, especially if, as Congress envisioned in 1978, a president is accused of perjury, obstruction of justice, and other truth-concealing crimes. Somebody -- call him a truth commissioner or call him a simple prosecutor -- will have to get to the bottom of the case.