As Robert Mueller pursues a wide-ranging investigation aimed at Donald Trump, members of Trump’s family, his appointees and his political associates, the president’s legal advisers have answered by attacking the legitimacy and fairness of the special counsel – which may be the prelude to executive action.
The White House complains that Mueller and his staff are “partisan” and biased against Trump. And it is all fair play, according to Trump’s friends in right-wing media, because the Clinton White House and its allies criticized independent counsel Kenneth Starr during the Whitewater and Lewinsky investigations.
But no comparison between Mueller and Starr survives even cursory inspection.
An outstanding nonpartisan attorney with a sterling career in law enforcement, Mueller was asked to serve as special counsel by Deputy Attorney General Rod Rosenstein, whose own appointment was approved by the president.
Starr was a distinguished former judge, but his partisan coloration was unmistakable. He had served as solicitor general under President George H.W. Bush, who considered him for a Supreme Court nomination; he had raised funds for Republican candidates; he had served as a stalwart of the Federalist Society, the high-powered organization of right-wing Republican lawyers; and he had nearly run for the U.S. Senate in the 1994 Virginia Republican primary.
Unlike Mueller’s appointment, which was praised almost universally by Republicans and Democrats alike, the Starr choice was tainted from the beginning.
Starr replaced the first Whitewater independent counsel, Robert B. Fiske Jr. – a former federal prosecutor and a moderate New York Republican, who had rejected the wilder conspiracy theories about the Clintons and appeared to be moving briskly toward the Clintons’ inevitable exoneration. (Unlike the Russia investigation, the Whitewater “scandal” and its offshoots were truly fake news.)
Outraged Republicans in Congress and the media roared for Fiske’s removal – and the panel of three Republican federal judges that controlled appointments under the old independent counsel act obligingly forced him to step down. One of those judges, David Sentelle of North Carolina, had even met with his home state’s Republican Senators Lauch Faircloth and Jesse Helms in July 1994 to discuss the replacement of Fiske. Three weeks later, the deed was officially done – and Starr became the new Whitewater independent counsel.
Lacking any background as a prosecutor, Starr’s partisan credentials appeared to be his only qualification. He hired experienced but highly partisan deputies, notably Hickman Ewing Jr., former U.S. attorney in Tennessee, where he cultivated close ties to the religious right; and Jackie Bennett, former U.S. attorney in South Texas, where he had pursued Democratic officeholders aggressively.
Unlike Mueller, who resigned from a lucrative partnership at WilmerHale immediately following his appointment, Starr not only failed to resign from Kirkland & Ellis but also continued to receive payments and advise clients.
This self-serving decision instantly drew attention to several stark conflicts of interest, including Starr’s appellate work on behalf of major tobacco companies in litigation with the Clinton administration and his legal advice to a conservative women’s group in support of the Paula Jones lawsuit against Clinton.
Perhaps Starr’s most blatant legal conflict involved the Resolution Trust Corporation, a federal corporation set up in 1989 to liquidate the assets of thrift institutions that had failed in the savings-and-loan financial crisis. At the same time the RTC was suing Kirkland & Ellis over its representation of a failed Colorado thrift called First America, Starr opened an independent counsel investigation of the RTC and several of its officials as part of the Whitewater investigation.
More than a year later, when the RTC settled its action against Starr’s law firm for one-third of its initial claim, Kirkland & Ellis insisted on a secrecy clause in the settlement agreement – presumably to save the firm and its star partner from embarrassing exposure.
Later still, even more troubling conflicts emerged, concerning the independent counsel’s tangled connections with billionaire Richard Mellon Scaife, secret financier of the anti-Clinton “Arkansas Project.” Yet these ongoing exposures scarcely hindered Starr’s pursuit of the Clintons, which continued for almost seven years. So when Trump advisers bark indignantly about Mueller’s supposed “conflict” over a fee dispute at a Trump golf course – which Mueller denies even occurred – it is difficult not to laugh.
Yet the legacy of the Starr investigation could still provide guidance to both the special counsel and the White House.
In 1998, the independent counsel commissioned an exhaustive legal research memo that was buried in the National Archives until The New York Times obtained it last week.
According to that 56-page document – authored by conservative legal scholar Ronald Rotunda – the president of the United States is not immune from federal prosecution and is indeed subject to indictment by a grand jury “for serious criminal acts that are not part of, and are contrary to, the president’s official duties.”
He can’t say he wasn’t warned.