The Cost Of It All

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Starr hasn't paid much attention to voluntary limits; he may be in that tiny minority of Americans who have no secrets, and so sees nothing wrong with pinching the zone of confidentiality to a tiny crease. There is nothing wrong with summoning Monica's mother to talk about her daughter's sex life, nothing wrong with going after bookstore receipts and hard drives and voice mail; these are all standard prosecutorial tactics. Yet earlier prosecutors like Lawrence Walsh and Robert Fiske elected not to use all the weapons in their arsenal. Even Nixon's adversaries never subpoenaed the President. In the past there has been a grease of custom and compromise that kept Presidents and prosecutors from getting this far in the hole. "You never want to litigate questions of separation of powers," says C. Boyden Gray, George Bush's White House counsel. "When you litigate these things rather than bargain over them, you tend to lose them."

But then Starr was dragged in that direction by the winner-take-all strategy employed by the White House. Clinton used his office to thwart an investigation sanctioned by his own Attorney General, thereby violating some precedents of his own. Ronald Reagan waived all Executive privilege at the start of the Iran-contra investigation, which arguably dealt with the very matters of national security and diplomacy in which Executive privilege is most legitimate. He turned over his documents and diaries; he told everyone, including White House lawyers, to do likewise, because he said he wanted the facts to come out. Jimmy Carter urged his lawyers and allies to cooperate in the investigation into the operations of his family's peanut warehouse in Georgia.

Clinton, in contrast, tipped his bully pulpit into a street barricade. He asserted Executive privilege to prevent his aides from testifying, and lost. His aides invented a "protective function" privilege to prevent the Secret Service from talking, and lost. He invoked attorney-client privilege to prevent White House lawyers from testifying, and lost. By picking, and then losing, fights on Executive privilege, he gave a legitimate right a bad name and has made it harder for future Presidents to invoke it. "All they were doing," says presidential scholar Mark Rozell, "was buying time and buying time."

At Williams & Connolly, David Kendall's firm, says Ruth, "they litigate every case the same way, and that's hardball. Give 'em nothing, tell 'em nothing, delay, fight at every turn. But when you're defending the President, you can't run a defense like you would for a private citizen," he says. Result: "Just like in the White House, after all the attacks, the prosecutor gets his own bunker mentality and starts to figure, O.K., this is a war." And by the time the White House began attacking Starr for zealotry and moonlighting and hiring aggressive deputies, Starr felt he had no option but to meet Clinton blow for blow.