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September 2022

Ken Starr: A Genial Man with a Mixed Legacy

Also: Remembering The New York Times’ Allan Siegal

By George Freeman
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Ken Starr died a few weeks ago at age 76. The younger generation may not recognize his name, though the oldsters surely will remember him both as a superb (DC) Court of Appeals judge and Solicitor General (under Bush 41), but also as the Independent Counsel whose investigation into the Whitewater financial scandal uncovered President Clinton’s sexcapades with Monica Lewinsky, his prevarications about it and ultimately his impeachment.

George Freeman

I dealt with Ken on a few occasions, and found him to be a man of many contradictions. Thus, while I am sorry for his passing and feel for his family and friends, I am decidedly undecided about his legacy.

On the one hand, he was an extremely genial and gracious gentleman; on the other, he had dangerous and extreme conservative views. One the one hand, he excelled as a lawyer and judge; on the other, he was not a good administrator, showing questionable judgement in broadening the Whitewater investigation into a probe of Clinton’s sex peccadilloes, in the way he ran the investigation, and what he put into the public Starr Report. On the one hand, he appeared scholarly and gentlemanly; on the other, he handled questionably a sexual harassment scandal at Baylor University, got a sweetheart deal for Jeffrey Epstein, and introduced the world to Monica Lewinsky’s blue semen stained dress.

That said, two very strong First Amendment opinions he authored in media defamation cases had important long run ramifications. Most important was his opinion in Ollman v. Evans, where he set out a four-part test as to whether the sued upon statement in a libel case was actionable fact or protected opinion. Two of the four factors highlighted the context of the statement, elements totally ignored by the Supreme Court when it issued its Milkovich ruling a few years later. Starr had the last laugh on this one, as history has shown that appellate courts throughout the country either have ignored or run end-arounds Milkovich and have almost universally adopted his Ollman test.

Starr, holding a copy of his controversial report, testifying at the House Judiciary Committee’s impeachment hearing for Bill Clinton

Starr also co-authored the D.C. Court of Appeals’ 7-1 decision reversing a $2 million jury verdict and dismissing the high-profile libel case brought by Mobil Oil President William Tavoulareas against the Washington Post. Tavoulareas claimed the Post libeled him in an article which stated he had set his son up in business. A three- judge panel had reinstated the verdict, but the Court of Appeals reviewed that ruling en banc. Starr’s opinion strongly concluded that the bulk of the article was substantially true, and that, in any case, it was not published with actual malice. It also made clear, inapposite to an earlier ruling, that the fact that it was an investigative article written by an investigative reporter was not an indicia of actual malice.

The Times had been sued by author Dan Moldea for a book review it ran of his book “Interference: How Organized Crime Influences Professional Football.”

My brief dealings with Ken began in a case that, in a sense, was an outgrowth of his Ollman v. Evans opinion. The Times had been sued by author Dan Moldea for a book review it ran of his book “Interference: How Organized Crime Influences Professional Football.” Moldea claimed that the conclusion of the review – that the book was marred by “too much sloppy journalism” – defamed him. Our motion for summary judgment was granted in the federal district court in D.C. on the grounds that it was opinion and that the opinion was supported by a number of factual examples. Indeed, how much is “too much?” And isn’t sloppiness an obviously subjective, unverifiable standard? Inexplicably, a panel of the D.C. Court of Appeals reversed, sending the case to trial. We applied for reconsideration and possibly en banc review, and sought amicus help. Many publishers and broadcasters immediately pledged their support, but we needed an author of an amicus brief. Bruce Sanford, who was representing the Times in the case, suggested Ken Starr. Starr had served on the very court we were appealing to and had penned its leading opinion on opinion. I remember thinking it was a great idea, albeit a bit cheesy.

I remember going to Ken’s office and discussing the case and our hopes for the amicus brief. Frankly, it was a bit of an ego trip as the former Solicitor General and Court of Appeals judge – and oft-mentioned potential Supreme Court nominee – was rapidly taking notes on everything I was spewing out. Ultimately, Ken wrote a very convincing brief. But I also remember that in the process he did not enamor himself to the many media giants I had handed to him as clients. He either was unresponsive to them or had alienated some with what seemed to me needless talk of potential conflicts.

What I remember better was the result.  The same three-judge panel (by Judge Harry Edwards) began its opinion by quoting Justice Frankfurter,”Wisdom too often never comes, and so one ought not to reject it merely because it come late.” The court went on to reverse itself, conceding that it had underestimated the element of context – after all, this was a book review where readers expect opinions – and that the review’s conclusion was a supportable interpretation of the book. But the punch line: in an order dated the day before its opinion, the court, without explanation,  denied the filing of Starr’s amicus brief. Yet, it seems likely from its opinion that it had read the brief nonetheless.

Another encounter with Ken came at an ABA Forum conference in Boca Raton. He was on a panel I had moderated – I don’t recall the subject – and after the program I introduced him to my then 13-year old daughter. He couldn’t have been more gracious as he asked her about school, the courses she was taking, (a bit prematurely) where she was planning to go to college, and so on.

The infamous stained blue dress

At another panel, this one at a LDRC Conference in Virginia (for the uninitiated, MLRC was started as the Libel Defense Resource Center), he was on an all-star panel on a hypothetical case study Laura Handman and I moderated. We were about 10-15 minutes before ending time when Ken made an eloquent comment about the importance of the First Amendment and the press to our democracy. It was such a perfect coda to the session, I decided to cut short the program and end the case study on his note.

I cite these examples to give a sense of the positive and human side of the man. But balanced against that are some of his missteps. His dubious handling of the Clinton investigation made him a lightning rod and probably took him off the track to a Supreme Court nomination. I never was quite sure why including all the tawdry details of the Clinton-Lewinsky trysts – cigars, the semen-stained dress, and others long since forgotten – in his Report subjected him to such criticism; after all, they were the evidence relevant to the conclusions of the Report, but they did. More questionable was his broadening the Whitewater financial investigation into first the Paula Jones case and then the Lewinsky encounters, and his dogged, maybe overzealous probe into sex in the White House, but I assume most investigators would go wherever the evidence leads. Looked at differently, David Greenberg recently opined in Politico that he “turned what should have been a dispassionate legal inquiry into a frenzied political inquisition.”

I don’t know that much about his role in getting a sweetheart deal from prosecutors in Florida way before Jeffrey Epstein became a household name –the incredible leniency shown Epstein there seems very suspicious – but I suppose he did his best for his perverted and shameful client.

And I don’t know how involved he was as President of Baylor when the school was found to look the other way to protect football players accused of some heinous incidents of sexual assault , but an outside law firm found pervasive mishandling of the cases by the university, and he was ousted as president and soon after resigned as chancellor. More recently, he was a part of Trump’s legal team defending him in his impeachment trial – of course, the opposite role he took in the Clinton impeachment process.

My mixed feelings are not far different from Monica Lewinsky’s herself. She has written of a chance meeting at a restaurant not so long ago where Starr recognized Lewinsky who was eating with her family, and stepped forward with a “warm, incongruous smile” and asked her several times if Monica was “doing ok.” As she put it, his demeanor “was somewhere between avuncular and creepy” as he “kept touching my arm and elbow which made me uncomfortable.” As he was genial with her and her family, she couldn’t help recall that this was the same man who had threatened and hounded not only her but also her family during the Clinton investigation. When Starr died, Lewinsky generously tweeted, “As I’m sure many can understand, my thoughts about Ken Starr bring up complicated feelings. But of more importance, is that it’s a painful loss for those who love him.”

Indeed, complicated and contradictory are two terms that come up in almost every obit and article I have read describing Ken Starr. But as First Amendment lawyers, we might remember that just as he was a zealous right-winger and perhaps the overzealous prosecutor of Bill Clinton, his opinion on opinion in Ollman, especially in light of the Supreme Court’s desultory ruling – long ignored in Milkovich – has served to protect our clients for a generation.  

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Siegal, foreground, in the NYT newsroom

On the subject of obituaries, Allan Siegal died at few days ago at 82. Al was in a sense “Mr. Times,” the institutional gatekeeper of the paper’s principles, taste and standards. For decades, more than anyone, he made the decisions which upheld – and changed when appropriate – the ethics, style and tone of the paper.

He was rigorous, knowledgeable and sometimes harsh, but respected by all and very sweet at heart. (As the Times obit cites, when he was in the hospital for a heart ailment, he quipped that some on the staff would be surprised he had one.) He was a wonderful client through most of my career – smart, thoughtful, and a pleasure to work with – but you certainly had to bring your A-game when having an important or difficult discussion with him. Fortunately, more often than not we agreed on matters, but when we didn’t we always found a solution acceptable to both of us. He also was a good friend. If you want to better understand why the Times is still revered by many and see a personification of good journalism , I highly recommend the Times obituary.

We welcome responses to this column at gfreeman@medialaw.org; they may be printed in next month’s MediaLawLetter.

George Freeman is executive director of the Media Law Resource Center.