Published by The Lawfare Institute
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According to news reports, the end of the Mueller investigation is near. As early as next week, the special counsel may submit his report to the attorney general. Days of fevered speculation lie ahead. The chatter will include questions that have proved durable over the past year and a half. Can Robert Mueller find a way to put his findings in all their factual detail before the public and intimate whether the president, if not indictable while in office, committed crimes? Will he also give Congress the benefit of his views—even a hint of them—on the further question of the impeachability of Donald Trump’s conduct?
Meanwhile the House’s investigative machinery has started up under the new management. The first major public hearing will feature the president’s former business and personal lawyer, Michael Cohen. The scope of questioning will be limited, concerned with some issues but not others: the campaign finance prosecution involving hush money payments will be fair game, while Cohen’s Russia-related testimony will take place behind the House and Senate intelligence committees’ closed doors. This week at least, Congress is supplying the breaking news as the Mueller report is awaited.
The respective roles of Mueller and Congress in the investigation of Donald Trump—and the relationship of the legislature to the special counsel in any impeachment inquiry—comes immediately to mind when reading former Independent Counsel Ken Starr’s recently published book, “Contempt: A Memoir of the Clinton Investigation,” in which Starr defends his role in the impeachment of Bill Clinton. The memoir is not a convincing performance, but it has the virtue of confirming that Mueller has performed exceptionally in ways that Starr did not. It also suggests that Mueller would have reason to refrain from following Starr’s lead in becoming an analyst, much less appearing to have become an advocate, for impeachment. He might well conclude, as Starr did not, that he had one job to do and Congress must attend to this other, different and urgent constitutional duty.
Time and again, Starr describes how he got lost in the politics of the situation—and, eventually, the politics of impeachment. In his book, he cannot explain why, as a skeptic of the independent counsel statute, he accepted a surprising appointment to replace special prosecutor Robert Fiske in the ongoing Whitewater investigation of the Clintons, especially in circumstances certain to raise questions about the motivations of those conservative judges, in the Special Division of the U.S. Court of Appeals for the D.C. Circuit, who directed the switch. He somehow talked himself into believing that he could and should defend himself in the press against the effective attacks from Clinton allies and counsel, and each of his attempts was predictably disastrous. He and his team sent to the Hill an impeachment referral that included a graphic sexual narrative, whereupon Congress promptly released it in full to the public. Starr seems confounded that Congress did not protect against disclosure of this material.
In another fateful move, Starr did not resist the decision by the House Republican majority to rely on him as their key witness, foregoing any investigation of its own. The majority’s special counsel for the impeachment proceeding informed him that he was to “fly solo in the witness box.” Starr still does not understand how, in this appearance before Congress and now again in this memoir, he has come off as the chief advocate for the impeachment case, not merely the source of a referral.
So, as much as Starr laments that his investigation was turned against him, such that later “I would be on trial [in the House], not the president,” he seems unable to see that his own choices were a large part of the reason he found himself in that unfortunate position.
In a remarkable passage, Starr shows how his approach to the impeachment issue was confused and likely to cause him no end of trouble. He relates how his team examined the authorities on impeachment and concluded that what constituted an impeachable offense was “ultimately a political judgment entrusted to the unfettered discretion of the House of Representatives.” In other words, he did not glean a concrete standard from all the research. He seems to have adopted Gerald Ford’s much-quoted and markedly simplistic assessment that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” But if there was no standard, then on what basis did Starr decide that Clinton had committed impeachable offenses? In evaluating evidence of impeachment, he would necessarily be trying to anticipate a political determination—an awkward position at best for an executive branch official discharging a prosecutorial function.
Starr’s referral to the House omitted explicit argument about the grounds for his conclusion that there was “substantial and credible evidence” of impeachable offenses. He relays his findings about Clinton’s involvement in perjury and obstruction, but in the report to Congress, he does not address the basic question of whether, on the specific facts rather than in the abstract, these crimes justified ouster from office.
For example, Starr understood at the time that the lawyers representing Paula Jones in her sexual harassment action against the president intended to trap the president in a lie. It was not to Clinton’s credit that he lied before the grand jury in the Jones case, but then again, it was not a feather in the Jones legal team’s cap—nor necessary for their client’s case—to lay a trap of this kind. Was this the kind of “perjury,” in a case of this nature, that supported impeachment?
Starr’s memoir does not engage with this basic issue: the extraordinary circumstances in which Clinton came to face questions about his relationship with Monica Lewinsky. It would seem that this context—the determination of adversaries to catch Clinton in a lie about a sexual relationship—was relevant to the analysis of whether the president committed an impeachable offense warranting removal from office. Far from addressing the issue, Starr instead proceeded to build on the Jones legal team’s maneuver and brought Bill Clinton before a grand jury to put him to the choice of admitting the lie or lying again.
In his memoir, Starr seems most motivated in his analysis of the impeachable misdeeds by an article of impeachment that the House did not approve, alleging “abuse of power.” Here again he seems confused. Starr objects to the aggressive legal defense that Clinton’s legal team mounted against the prosecution, and somehow imagines that it implicates the president in an abuse of his office. He is incensed by Clinton’s lawyers’ standard assertion of executive privilege and a more innovative but ultimately unsuccessful “protective function” privilege to shield the president from the testimony of his Secret Service detail.
It is revealing that Starr was apparently shocked that David Kendall, the president’s lead personal counsel, showed up in Little Rock, Arkansas, to attend a day in the trial of the Whitewater defendants. Starr writes that Kendall’s appearance was both “understandable” inasmuch as Kendall was energetically representing his client’s interests and “shameful from a constitutional standpoint.” He excoriates Clinton for “[sending] defense lawyers to get his friends and allies acquitted ….” But, of course, Clinton’s lawyers understood that the independent counsel’s Whitewater prosecution was not primarily about an obscure cast of characters who ran into trouble over a land development investment. It was about Clinton, which is how the independent counsel investigation found itself in Little Rock in the first place. And even Starr repeatedly commends the Clinton legal team’s “no-holds-barred but entirely legal” strategy.
If Clinton committed an abuse of power, it did not consist of advancing constitutional and legal arguments. The courts heard them and generally rejected them. It is odd for Starr to suggest that Clinton might be impeached for raising them in the first place.
At the time, Starr eventually worked from this perplexing set of judgments to the conclusion that he should report in detail to the House on Bill Clinton’s apparent commission of impeachable offenses. The independent counsel statute called for such a report, but Starr had the discretion to adopt a course different from the full-throated advocacy contained in the report and, later, in his House testimony—especially if he could not identify a clearly articulable and coherent standard.
Starr effectively concedes this discretion in a fairly extended, somewhat defensive discussion of the alternative of congressional “censure” of the president. For a time, Congress considered censuring the president by resolution rather than impeaching him, establishing in clear terms for the historical record its view of the president’s objectionable conduct. In doing so, it could have acted relatively expeditiously, without lengthy investigative proceedings or direct threat to the president’s hold on his office. Starr concludes that this “less draconian” alternative was available and would have been fine by him, provided that it did not include a penalty that would raise “bill of attainder” issues. But: “No one asked me.”
Rather than consider carefully how to stay clear of the House’s politics, Starr agreed without “enthusiasm” to appear as the House’s only fact witness. He denies that he did anything more in this testimony than set out the basis for a referral that the House was solely responsible for evaluating. He rejects the suggestion that he had become an advocate for impeachment.
At every turn in his tale, however, Starr makes clear his belief that Clinton had committed “serious crimes against our system of justice.” He “despaired” that others did not share his deep concern about the president’s “abuse of power,” and he commends the House Republicans for their “courage” in voting for impeachment at a time when the public rallied behind the president and against his removal from office in the Monica Lewinsky matter. He acknowledges that his team’s special “ethics” advisor Sam Dash, former lead counsel to the Senate Watergate Committee, resigned in protest over Starr’s emergence as a cheerleader for impeachment.
In sum, Starr tells the story of a prosecutor charged with investigating a president who fails to define his role with precision and avoid becoming swept up in the politics of impeachment. And there is every reason to believe, and to hope, that Robert Mueller will not make the same mistakes.
So far, Mueller has shown the disciplined perception of role that Starr lacked. For all the attacks the president and his allies have launched against the special counsel, Mueller has gone about his business and declined to engage with his critics or the press. He has stayed far from the politics, even as Trump and his legal team try to suck him in. The president has labored to make Mueller the story, but the special counsel has not taken the bait, and the public so far has judged Mueller to be a straight shooter, more credible than his critic-in-chief.
Mueller, of course, is conducting an investigation into very different alleged offenses. He also must contend with constraints on his reporting under the special counsel regulations that contemplate a confidential and—in the words of the Federal Register commentary on these rules—“limited” report to the attorney general. It is correct that the rules do not speak to his discretion to comment on impeachment. But the history of their development reflected a clear concern with the excesses and misjudgments that arose out of the more expansive authority once provided to independent counsels.
As a result, the attorney general receiving the report is required to provide only a “brief” notification to Congress, including noting any instance in which he disapproved an action the special counsel proposed to pursue. He has the discretion to disclose more, if he determines that more extensive disclosure is in the public interest, but only if consistent with the law and regulations. As Jack Goldsmith and Maddie McMahon have pointed out, William Barr has stressed these legal limitations, including the protection of privileges, and was generally notably noncommittal in his confirmation hearing testimony. He has committed only to seeking to make public “as much as I can.”
Quinta Jurecic and Benjamin Wittes have laid out various ways that Mueller could get around these problems, arrange for detailed disclosure of his findings, and frame and advance Congress’s consideration of impeachable offenses committed in relation to the possible “collusion” and obstruction of justice. Mueller could well do so; he has defensible options, such as the development of a “road map” like the one that Special Prosecutor Leon Jaworski transmitted to Congress, via the Watergate grand jury, that identified in summary form the potentially impeachable offenses and the supporting evidence.
This is one answer to the concern with Mueller edging into the impeachment process: He can be more like Jaworski, not Starr, and engage in a more limited intervention like the road map. This aspect of the Watergate story is more complicated than sometimes depicted. In 1974, the House Democrats had balked at seeking judicial assistance in obtaining the Watergate investigative record. Only under pressure from the House Judiciary Committee chair, Peter Rodino, did Jaworski agree to the road map, and key members of the special prosecutor’s team urged him to adopt this strategy out of a lack of confidence that the House was acting with adequate dispatch and competence. It was far from the cleanest, clearest allocation of institutional responsibilities.
Mueller could pursue an option like Jaworski’s, or act more boldly with Starr-like ardor. Either course would be costly. In this period of strained or overtly challenged institutional norms, Mueller’s apparently conservative course has served him and the nation well. He has built a record and brought indictments, and he has earned apparent public approval for his professionalism. After his work is done, it will be up to Congress to acquire all the available evidence, and to judge whether the president has committed impeachable offenses.
The Trump administration may well put up a vigorous fight against a full release to Congress. But it cannot prevail in court against the House’s clear need for the material in the discharge of its “sole power” to consider and vote on impeachment.
In the meantime, no one should be disappointed if from beginning to end, Mueller holds fast to his role as a seasoned prosecutor and Department of Justice professional, not as the face of impeachment.