Among the less obvious lessons of the Referral submitted to Congress by Independent Counsel Kenneth Starr is the need to take seriously the recent, short-lived decision by a panel of the Tenth Circuit in United States v. Singleton, holding that federal prosecutors cannot reward witnesses with leniency — or even with recommendations for leniency — for testifying truthfully. The panel opinion was later reversed en banc, and few people expect the Supreme Court to reinstate it. For reasons that the Starr investigation helps to make clear, however, the initial decision deserves careful attention regardless of its ultimate fate.

After describing Singleton and the tumult it triggered, this essay poses a question that may at first seem idle: what distinguishes Starr’s promises to Monica Lewinsky in exchange for her testimony from the efforts he charges the President made to help find her a job? The essay argues that the difference cannot be simply that Starr sought the truth, or that Starr promised only what he might have provided anyway in the normal exercise of his discretion. The difference has to be that Starr is a prosecutor, and prosecutors have a special role to play. For this answer to be fully convincing, however, the special nature of the prosecutor’s role, and the special obligations it entails, need to be taken more seriously than is now common.

Unfortunately, there has been a general failure to think rigorously about the questions prosecutors face every day regarding the proper exercise of their discretion. How should prosecutors decide what charges to file? When, for example, does perjury, or obstruction of justice, warrant criminal prosecution? What role should the likely sanctions play in a prosecutor’s choice of charges? These questions receive little academic attention. The essay concludes that perhaps the most important lessons of both the Starr investigation and the Singleton decision is that they deserve much more attention.
Note: Part of a symposium on “The Changing Role of the Federal Prosecutor,” held at Fordham University School of Law in memory of William M. Tendy on November 6, 1998.