Starr teachers.

• Author: Silvergate, Harvey A.
• Position: Independent counsel Kenneth Starr

Think independent counsels use dirty tricks? Check out the Justice Department's regular prosecutors.

"If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm - in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself."

These words will strike many as an apt description of the way that Independent Counsel Kenneth Starr has pursued President Clinton. But they were uttered nearly six decades ago by Robert Jackson, who went on to an illustrious career as a Supreme Court justice and an American prosecutor at the Nuremberg War Crimes Tribunal. At the time, he was President Franklin Roosevelt's attorney general, and he was addressing the ordinary federal prosecutors under his command. He was alluding to tactics that have since become common, practiced with a boldness that grows as federal judges communicate ever more clearly that they will neither supervise federal prosecutions (as they once did) nor remedy prosecutorial misconduct.

Intense media coverage of recent investigations by the Office of the Independent Counsel has resulted in widespread astonishment at the sort of abusive prosecutorial tactics that Jackson decried. In response, independent counsels have protested that they are merely doing to their lofty targets what the Justice Department regularly does with impunity to lesser ones - that is, they are following accepted DOJ procedures. Late last year, Starr's spokesman, Charles Bakaly III, told the Legal Times, "However unpleasant these techniques, they are part of what federal prosecutors do.... We followed longstanding practices and policies."

Shocking though it may seem, Bakaly was speaking the truth. But if the use by independent counsels of tactics that are common among Justice Department prosecutors is cause for well-founded public concern, the proper response cannot be merely to reform or do away with the independent counsel statute. Rather, the criticism of Starr and other independent counsels points to the need for much more sweeping changes in the way all federal prosecutors operate.

A key Justice Department tactic in overzealous investigations, emulated in Starr's stalking of Clinton, is to pursue one's quarry by going after a chain of people toward the end of which are some who, by virtue of their current or former relationship with the ultimate target, are in a position to provide seemingly credible incriminating testimony. A basic premise of such investigations is that, unless an intermediate target is threatened with ruin and imprisonment, he will have no incentive to provide testimony that suits the prosecutor's needs.

The most serious problem with this approach, of course, is that a witness who is placed under sufficient pressure to corroborate the prosecutor's firm belief in the ultimate target's guilt may have a hard time resisting the urge to compose as well as sing. A collaboration between prosecutor and witness then proceeds, wherein the witness learns, by a process sometimes subtle and sometimes not so subtle, what he must say to stay out of prison. Often a witness does not have to deviate too far from the literal truth to satisfy his handlers, since there are many federal offenses for which legally sufficient evidence of guilt consists of nothing more than what a target is alleged to have said. An enormous variety of rather common undertakings in political and commercial life can be transmogrified into federal crimes simply by virtue of the target's intention, which in turn may be demonstrated by something he is alleged to have said to someone who later became a government witness.

Conspiracy, for example, is a favorite weapon in the government's arsenal, because the crime is committed merely by the target's agreement with an associate that the latter should violate a law. Securities fraud is another such weapon, since a savvy stock investment becomes insider trading if the investor, already suspected or accused of some crime, credibly attributes his stellar results to an overly informative conversation with a targeted corporate officer. Similarly, an innocent error on a net worth statement filed in support of a loan application becomes a federal bank fraud if an associate of the borrower recalls a conversation in which the borrower happened to mention an asset value lower than the figure used on the statement. The comment proves knowledge and intent, which are required elements for most felony prosecutions.

With such recollections, a little fish reeled in by a prosecutor can wriggle off the hook by helping to ensnare a seemingly bigger fish. If the bigger fish is already on the prosecutor's sonar, so much the better.

We have firsthand experience with these tactics, as do most prosecutors and defense lawyers, nearly all of whom operate under a tacit agreement to refrain from speaking publicly about how the system works. Prosecutors believe the public would not understand the need for such tactics; law enforcement thus joins sausage making and legislating as processes that should not be observed too closely. Prospective witnesses and their lawyers share with prosecutors an interest in keeping hidden the subtle pas de deux - innocuously dubbed "plea discussions" or "immunity negotiations" - that results in the intermediate target's agreement to become a witness.

This tradition of discretion helps explain Kenneth Starr's barely concealed disgust with the behavior of Monica Lewinsky's former lawyer, California malpractice specialist William Ginsburg. Ginsburg's highly publicized and undisguised offers to have his client provide helpful testimony against the president in exchange for immunity from prosecution for perjury pulled away just enough of the curtain to alert the public to the enormous pressures placed on witnesses to "cooperate." Since it was no secret what Starr thought Clinton did, it was not difficult for a witness to figure out what to say to obtain immunity or avoid a perjury indictment.

The same strategy was followed in a case in which our firm participated in the...