Starr Minds the Bar
Whitewater special prosecutor Kenneth Starr resigned -- then was allowed to change his mind and unresign. Henry Reske, a former reporter for the official magazine of the American Bar Association, was never so fortunate. During Reske's tenure at the ABA Journal, Starr served on the magazine's board of editors. In that role, Starr evaluated the work of various Journal reporters, including Reske. According to confidential Bar Association documents obtained by The Nation, Starr regularly critiqued Reske's work, even while the reporter was assigned to cover his Whitewater probe, and on at least one occasion Starr suggested a specific Whitewater story. Reske had worked for the Journal for almost six years, earning high praise and receiving top performance ratings from his editors. He resigned early this year, however, after unrelenting criticism of his coverage by Starr and after Reske had quarreled with his superiors over the propriety of the special prosecutor offering advice on how the Journal should cover Whitewater.
Although Starr's most problematic back-seat editing at the A.B.A. centered around Whitewater, his involvement in and critique of the Journal has been, according to documents and sources who have firsthand knowledge, an aggressive effort to tilt the magazine's coverage ideologically and engage in special-interest pleading. Despite Starr's immense responsibilities as the Whitewater independent counsel and his moonlighting on behalf of his corporate clients as a partner at the Washington firm of Kirkland & Ellis (which earns him $1 million a year) [see Conason and Waas, March 18, 1996], he somehow found time to attend meetings of the ABA Journal's board of editors and provide regular criticism of the magazine's contents.
Some of his commentary was simply legitimate expression of his political bias. He objected to an affirmative action debate in the magazine's "Developments" section, for example, because the pro side was argued well while the anti position was represented by a "bombastic, flamethrowing" standard-bearer -- and thus lacked credibility. Starr further complained:This "debate" contributed no light, but a good deal of heat. Is this the George Bushnell- [a former president of the American Bar Association] style of reducing serious issues to laughingstock stereotyping imported into our pages?
Starr often voiced the opinion that the magazine devoted too much coverage to gay rights. Two stories written by Reske about a Virginia case, Bottoms v. Bottoms, in which the Virginia Supreme Court upheld a decision to remove a child from his mother simply because she was a lesbian, were singled out by Starr, who wrote:Ahem, does it occur to Mr. Reske that the Virginia case was "closely watched" by advocates for groups/organizations/individuals other than gay and lesbian interests? Is this, yet again, a not-so-subtle indication of writer-editorial perspective, or at a minimum likely to be so perceived?
Starr criticized the second Reske story about Bottoms by noting that it did not quote enough people citing the court's decision to remove the child as a correct action. Yet much of Reske's story was given over to quoting the court's decision and an attorney who had opposed the child's mother. At a subsequent meeting of the board of editors, Starr further complained that an attorney quoted by Reske was "extreme" on the issue and "outside the mainstream." As it turned out, the lawyer in question was Joy Feinberg, who had been co-chairwoman of the custody committee of the A.B.A.'s family law section.
Other intrusions by Starr appeared to involve private agendas, however. In May 1994 Reske wrote a story about how members of the Harvard Law School class of 1958, among them consumer activist Ralph Nader, decided to form a new nonprofit organization to create legal advocacy groups across the country. The story infuriated Starr, who wrote his fellow members of the ABA Journal's board of editors: "Mr. Nader is, believe it or not, the subject of direct, broad and justified criticism. It is just this kind of fluff piece that supports the proposition, widely held, that the ABA is in happy liaison with the loony left of American law."
Some of the editorial employees of the Journal who read the criticism believed that Starr's input was highly inappropriate. Kirkland & Ellis had at the time been playing a leading role in lobbying Congress to pass legislation that would have imposed severe restrictions on the rights of individuals to sue corporations that make products that harm, maim or kill those who use them, and would have limited punitive damages that juries could award to victims. Several Nader groups were at the forefront of opposition to the legislation. The tobacco companies Philip Morris and Brown & Williamson, two of Starr's clients, were facing hundreds of liability lawsuits across the country and would have benefited from passage of the law. Another beneficiary would have been General Motors, which had retained Starr and Kirkland & Ellis after a spate of civil lawsuits alleged that more than 650 individuals were burned to death between 1973 and 1987 as a result of negligent design and manufacture of pickup trucks. (On June 28, 1994, when the Senate was considering the bill, among the two dozen lobbyists arguing their case in the ornate anteroom to the Senate floor was Alfred Cortese, then a partner of Starr's at Kirkland & Ellis.)
One editorial employee of the Journal told me: "When [Starr's] criticisms that he puts forward...advance the interests of his legal clients, then he has gone too far. Someone should have pointed out to Ken that that was perhaps inappropriate."
In November 1994 and again in January 1995, Reske wrote Whitewater stories relating to Starr's appointment in 1994 by U.S. Court of Appeals Judge David Sentelle. His reports outlined the public criticism of Sentelle made by five former presidents of the A.B.A. They criticized Sentelle for lunching with two conservative Republican senators at the time he was considering a petition from one of them to remove then-independent counsel Robert Fiske from office because of alleged conflicts of interest. Not long after the lunch, Sentelle removed Fiske and named Starr.
Reske could hardly have ignored the story. After all, he was writing for the official journal of the American Bar Association, and a criticism of a federal appellate judge by no fewer than five of its former presidents was surely news. He also quoted Stephen Gillers, professor of legal ethics at New York University, who had been publicly highly critical of Sentelle's actions. Starr complained to the Journal's board of editors, writing, "Is Stephen Gillers the only ethics prof in the Journal's collective rolodex."
Things only got worse for Reske. On August 5, 1995, after a meeting of the board of editors of the Journal, Starr passed along a handwritten note to Kerry Klumpe, the managing editor of the magazine, suggesting that it might be interested in covering a recent development regarding his Whitewater investigation:Kerry,
FYI. AG Reno has filed an amicus brief in the Jim Guy Tucker case (issue re Independent Counsel's jurisdiction). It has had virtually no press coverage, e.g. N.Y. Times ran last Sunday the AP-Little Rock wire story. There's a story there, re relationship of AG/DOJ to the various Independent Counsels. Relatedly, during the spring, AG Reno -- according to press reports -- denied requests by IC Don Smaltz re his jurisdiction. I opine not on the newsworthiness (or lack thereof) of these issues for the Journal.
Only days later, Reske received a telephone call from one of his editors to relate the story idea suggested by Starr. Reske will not comment publicly on the matter, but according to his attorney, Lynne Bernabei, he politely but adamantly insisted in a discussion with his editor that it was inappropriate for Starr to be using his position as a member of the Journal's board of editors to be suggesting stories about his own Whitewater investigation. Soon thereafter, Reske began receiving the first negative performance evaluations of his work. (Before joining the Journal, Reske had developed a strong journalistic reputation, which included ten years at United Press International and six as its widely respected Supreme Court correspondent.)
Gary Hengstler, the editor and publisher of the Journal, told me that he decided not to run a story on the issue suggested by Starr because he concluded on his own that it was not newsworthy. Hengstler also contends that Starr should be held blameless, because two months earlier, Hengstler himself had asked Starr to suggest possible story ideas about Whitewater.
This past December, according to Bernabei, Reske's editors asked him to cover an A.B.A. panel discussion on which Starr was to be a panelist; Reske wrote a memo to his editors, pointing out once again the conflict. (It was at that point that Reske retained legal counsel, fearing his job was endangered.) The relationship between Reske and his bosses then grew worse. Hengstler said that the differences Reske had with his editors were unrelated to the controversy about Kenneth Starr.
"When I took the job as editor and publisher of the Journal," says Hengstler, "I told them that it was only on the condition that we be considered an independent journalistic entity, not an arm of a trade association. I think we have done just that."
Meantime, Starr, who declined to comment for this article, continues to wear his multiple hats: Whitewater prosecutor, corporate attorney and editorial board member of the ABA Journal.
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Murray Waas is a Washington, D.C., reporter.
Starr Watch: Kenneth Starr's Conflicting Interests
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