Judges vote 2-1 to keep Starr's investigation open

JANE FULLERTON
ARKANSAS DEMOCRAT-GAZETTE

WASHINGTON -- A federal court panel declined Wednesday to end the investigation by independent counsel Kenneth Starr that led to President Clinton's impeachment, voting 2-1 to continue the five-year inquiry.
In a rare show of disagreement, the special three-judge panel that appointed Starr split on whether to keep his investigation going. Over the objections of Judge Richard D. Cudahy, who argued that "there is a strong case for termination," the panel ruled that such action "is not currently appropriate."
To end the investigation, wrote Judges Peter Fay and David Sentelle, would "visit upon this particular independent counsel a level of supervision different than that ever before afforded" to other such prosecutors and would be tantamount to "an exercise in unconstitutional supervision."
But Cudahy, a senior judge appointed to the bench by President Carter, contended in a dissenting opinion that it is time to cut off Starr's investigation.
"An endless investigation, which the passivity of the majority invites, can serve no possible goal of justice and imposes needless burdens on the taxpayers," he wrote.
Cudahy said that, with no pending prosecutions, it is clear that Starr has completed the bulk of his work, with a final report being the primary remaining task.
"This is a natural and logical point for termination, since it is not clear how additional measures against the principal subject of the investigation could be pursued," he wrote. "Nor is there any indication that the independent counsel would pursue them -- whatever they might be. In addition, there apparently are no pending prosecutions against lesser figures."
But Fay, a senior judge appointed to the federal bench by President Nixon, and Sentelle, the special panel's presiding judge who was appointed by President Reagan, said Starr had assured them that "his work is ongoing."
The judges said they did not seek further documentation of that work, as the court has in previous independent-counsel investigations, because they do not have the authority to supervise Starr's work and because "in this case, the public record offers ample support."
Fay and Sentelle also characterized Starr's investigation as "unusually productive" because it resulted in the president's impeachment as well as 24 indictments and 16 convictions.
Starr, in a statement released by his office Wednesday night, said Cudahy's opinion calling for cutting off his investigation "reflects a fundamental misunderstanding of the breadth of his office's work."
Starr noted that his office is pursuing several aspects of the Whitewater investigation, including appeals by former Gov. Jim Guy Tucker, as well as investigations into the firings of the White House travel office staff and the handling of FBI files.
"In addition to completing the final report for all matters within our jurisdiction, we are working diligently to complete our investigative work and to determine in collaboration with the Department of Justice whether appropriate matters can be referred back to the department," Starr said.
The independent-counsel statute requires the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit to periodically review the status of an independent-counsel investigation and decide whether it should continue. In each previous review of Starr's investigation, the panel has voted 3-0 to keep it open.
In his opinion, Cudahy argued that any remaining work to be done by Starr's office could be finished by the Justice Department, as provided for in the independent-counsel statute, which expired in June.
The Justice Department, however, has signaled that it would not be able to take on any unfinished work from Starr's investigation. That issue was raised in response to questions about whether Starr might leave the job before his office writes its final report.
While the law allowed current investigations to continue past the expiration date, it did not include provisions for the departure of an independent counsel before his investigation is complete.
In comments to reporters last week, Starr said he hoped to wrap up the investigation and write a final report at the "earliest practicable moment."
He said he expected the work to be completed before the general election in November 2000, when first lady Hillary Rodham Clinton could be the Democratic nominee for a U.S. Senate seat from New York.

This article was published on Thursday, August 19, 1999

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