The Russia Connection

A Starr Report

By Benjamin Wittes
Friday, October 5, 2018, 8:58 AM

Back in 2002, I published a book entitled Starr: A Reassessment, which took a nuanced look at the history of Kenneth Starr’s service as independent counsel. The book focused on Starr’s understanding of his role under the now-defunct independent counsel law, specifically his ambitious understanding of that role not as a traditional prosecutor but as a kind of truth commissioner. I have recently been thinking a lot about my critique of Starr, a subject which I plan to revisit at some length: “Starr: A Reassessment: A Reassessment,” if you will. In the meantime, however, the opportunity to interview Starr for the first time since I wrote the book arose yesterday at a Brookings event I held on Wednesday with my colleague Norm Eisen.

Starr made several points I think are worth highlighting.

First, he stood up strongly for the integrity of the Mueller investigation. “I have great confidence . . . in Bob Mueller and his professionalism and his integrity,” he said.

Second, Starr suggested that the report Mueller is supposedly working on is unlikely to be similar to the famous “Starr Report.” The changed statutory landscape suggests to him that Mueller is likely writing something much more modest than Starr himself felt compelled to write. While he acknowledged this was speculation, he suggested Mueller was probably not writing an impeachment referral, as he did, but a non-public report to Deputy Attorney General Rod Rosenstein.

Third, Starr gave an unqualified vote of confidence to Rosenstein, whose firing President Trump is constantly considering these days. Rosenstein worked for Starr earlier in his career, and Starr could not have been clearer had he written a personal letter to President Trump that removing Rosenstein would be a terrible idea. “I think the country should have complete confidence in Rod given his impeccable record,” he said.

Finally, and perhaps most importantly, Starr offered a strong structural reason, rooted in the demise of the independent counsel law, to have faith in the current Justice Department special counsel structure. When Mueller issues an indictment, I pointed out, Rosenstein speaks for him and does the press conference announcing the move. By contrast, when Starr issued an indictment, then-Attorney General Janet Reno was nowhere to be seen. Because of the then-extant law, she did not have to defend him, because he was not answerable to her. Starr responded that it would have made a great difference to have had the attorney general’s backing, as Mueller has Rosenstein’s backing. Partly for this reason, the current environment, in which Mueller is potentially vulnerable to firing, is actually healthier, he argued. When Rosenstein speaks on Mueller’s behalf, “it shows the American people that there is, in fact, accountability in the form of our separation of powers, checks and balances, and that a Bob Mueller cannot go wildly astray on what might be viewed as a rogue kind of roving prosecutor. Because we know, at least those who focused on the issue know, that he is checked under these regulations by Rod Rosenstein.”

Here’s the video of the entire conversation, which took place by remote video:

Here’s a transcript of the conversation:

Wittes: Ken, thanks for joining us.

Starr: My pleasure, thank you.

Wittes: So there is a question that I have been thinking about in reference to you through this entire summer and spring as these news stories have arisen that Bob Mueller is writing a report. And you are one of the few people in the country whose name is attached to the word “report” in quite the way it is. So as the audience may not know, I wrote a book about the independent counsel investigation under Ken Starr in which I explored and critiqued your understanding of that role in relation to the reporting function of the office. And so I’m really interested in your thoughts about what, how we should understand these press reports that Bob Mueller is working on some kind of report. How do you understand that, and as an initial matter, what do you think: what sort of report do you think he is likely working on?

Starr: It’s obviously a speculative matter, we cannot know. I have great confidence, by the way, in Bob Mueller and his professionalism and his integrity. But when we go to the regulations under which he’s operating, we see a very stark difference with the regime that Congress, I think unwisely, inaugurated in 1978, creating the-then special prosecutor and then independent counsel provisions. Because 595(c), that statue, pointed very expressly towards impeachment. It was a thumb on the scales setting forth a very modest standard, requiring the independent counsel in words that were quite obligatory, very clear--“shall”--bring to the House of Representatives. When there is substantial and credible information that an impeachable offense--left, of course, undefined--may have been committed. We are in a totally different regime now, and it’s a better regime. That is to say, Bob was appointed by the Justice Department, is an officer of the Justice Department, and is operating under the policies and directives of the Justice Department. I cannot imagine that whatever report he is working on is one that is designed to be a public kind of document as opposed to a document that gives an accounting to the deputy attorney general, Rod Rosenstein, who then may do what he wants to with it including obviously an information sharing role with the . . . Congress. So I think we are dealing with a much healthier and much less politicized approach.

One of the many flaws of the independent counsel statute--quite apart from the appointment process, removing the appointment process from the executive branch and putting it into a special apparatus of the judiciary and putting the judiciary in an very odd, awkward position--is that there is nothing in the regulations that refers to impeachment. So as Bernie Nussbaum--the very able first counsel to President Clinton--said, and I’m paraphrasing: don’t sign this reauthorization of this law. This is a dagger aimed at the heart of the presidency. And that’s precisely, I think, what it was. We’re out of that and I think we’ve depoliticized the process by virtue of the Janet Reno regulations.

Wittes: So your assumption is that whatever--when the press, or the president's lawyers, who seem to be the sources of all of these relevant stories--when the press talks about Mueller working on a report on obstruction, that it is not an impeachment referral at all?

Starr: That would be my assumption. Now, again, Bob, Bob Mueller, reports to the deputy attorney general, and the deputy attorney general has to--and Jeff Sessions is absent due to his recusal--has to interpret those regulations, so there may be an interpretive gloss, in light of the facts, that, in an exercise of discretion, the report should in fact be more fulsome, more complete, more thorough, as opposed to what one might contemplate is an executive summary that doesn’t necessarily lay out the evidence, pro and con. And one of the reasons is that if indictments are not sought, then the Justice Department is, under its judicial policies, not to be holding press conferences, setting forth reasons, information, why it’s not taking action in terms of going to the grand jury and seeking an indictment. That’s part of our protection, I think, as a free people, and part of the criticisms that were directed, I think quite properly, at then-Director Comey, that he should not have been holding these press conferences explaining the reasons why he did not think an indictment was appropriate, for a number of reasons, including usurping the powers and authorities of the Justice Department. So i just think we’re at a very different, and healthier, structural environment much more consistent with our system of accountability under separation of powers.

Wittes: If we assume that you are correct that whatever Mueller is working on is a document to be sent to the deputy attorney general, the acting attorney general, not a document meant to be sent to Congress, and that it may not have some of the same narrative or sort of broadly ellucidating material, but may be much sparer than the final reports of the independent counsel under the independent counsel law or the impeachment referral that you guys wrote, this puts an enormous premium on the role of Rod Rosenstein, the deputy attorney general, who, I don’t know if coincidentally or not, cut his teeth working for you in the office of independent counsel. Rosenstein has been kind of famously under enormous pressure of late and wedged between the office of special counsel which he has, in my opinion, done a remarkable job of protecting and allowing to do its work, and a President who, you know, publicly regards it as a witch hunt and decries it as 17 angry Democrats in a fashion that must have resonance for you in terms of the way people used to talk about your office. Talk about the role of Rod Rosenstein here and the, you know, every day we wake up and there’s a suggestion that today may be his last day in office. How should we understand who Rod Rosenstein is with reference to this whole process?

Starr: Rod has just rock-ribbed integrity. He is completely committed to the rule of law. He turns square corners. He will call them as he sees them. So in terms of the report, I could see him at the exercise of his discretion--I think he has discretion under the regulations--I could see two reports being prepared, somewhat analogous to a proposed indictment. As I recount in my recently published book, we seriously contemplated the indictment of Hillary Rodham Clinton for various incendiary wrongdoings in Arkansas. That proposed indictment was supported by a very elaborate prosecution memo. I could see now, under the current circumstances, an executive summary, a much more summary document by definition, and then a very thorough report, that would not, in fact, be submitted to Congress, but would again be a discretionary call by Rod Rosenstein.

I think the country should have complete confidence in Rod given his impeccable record, and yes, I did work alongside him. He was on our trial team that resulted in the jury convictions after a very hard-fought three-month trial in Arkansas. The President and the First Lady’s, at the time, business partners Jim and Susan McDougal, and then the sitting Governor Jim Guy Tucker. These were serious felonies connected with the collapse of Madison Guarantee Savings and Loan. Rod came to us from the Justice Department, he returned to the Justice Department where he had a very splendid record, and then, of course, I think, as everyone in this audience probably well knows, he served with great distinction as United States attorney. In the best traditions of the justice department, he was appointed by a Republican president and remained as United States attorney with a Democratic president, with the enthusiastic support of two Democratic Senators. Rod is a Republican, but, above all, he is a rule of law guy. So I think we should have great confidence in him including just in his courage. He will--the prior panel talked about do you resign as a matter of conscience and so forth. Rod Rosenstein is that kind of person. He will, if directed--I don’t think he will be--to take action that he thinks is inconsistent with the rule of law, he will resign.

Wittes: One more question and then I’ll let you go. One of the striking optical differences when you talked about how this regime is more healthy than the independent counsel regime, one of the stunning optical differences between this era and the era under the independent counsel law is whenever the office of special counsel brings an indictment, it is the deputy attorney general, the acting attorney general, not Bob Mueller, who is up there at the podium giving a press conference about it. And I just want your, if Janet Reno, if you had been serving under this regime, and Janet Reno had been situated to you the way Rod Rosenstein is situated to Bob Mueller, and she had had to go out and make all the announcements, or had been willing to, how would that have changed the operating environment in which you were serving?

Starr: I think it would have greatly promoted public confidence in the work of the office. Just as Bob Mueller was under--is under assault, we were under assault. Judge Walsh when he was investigating during the Reagan administration, was under assault, because we were out there all by ourselves. What Bob Mueller has is essentially the insulation and protection of the deputy attorney general, confirmed by the Senate. I wasn’t confirmed by the Senate. And Janet Reno, throughout--I am harshly critical of her conduct to the very end of my investigation, our investigation--but she was a rule of law person. She was appointing independent counsels when she felt that the need was justified by the facts. I think she was obedient to the law, and for Janet Reno to go out and to announce the indictment of Jim and Susan McDougal and Jim Guy Tucker, might have saved us a trial. You might have gotten a few more guilty pleas. We had a number, there were 14 criminal convictions and criminal--and guilty pleas during the course of the investigation. But it shows the American people that there is, in fact, accountability in the form of our separation of powers, checks and balances, and that a Bob Mueller cannot go wildly astray on what might be viewed as a rogue kind of roving prosecutor. Because we know, at least those who focused on the issue know, that he is checked under these regulations by Rod Rosenstein.

Wittes: Ken Starr, thank you so much for joining us.