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Monday, February 18, 2019

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.

Surely, a fearful Trump is contemplating how to rid himself of the former FBI director now overseeing the probe into Russia’s interference with the 2016 election. Within the past few days, the president has openly warned Mueller that he deems any examination of the Trump Organization’s business dealings to be a “violation” of the special counsel’s mandate. Meanwhile 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.

Nobody can deny that the Trump White House has every right to examine the record of Mueller and his staff and raise questions about them on the press dais, on Twitter, and possibly in court. But no comparison between Mueller and Starr will survive 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 lawyer and former judge, but his partisan coloration was unmistakable. He had served in the Reagan Justice Department and as Solicitor General under President George H.W. Bush, who had considered him for a Supreme Court nomination; he had donated and 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 from Virginia in the 1994 Republican primary.


Unlike Mueller’s appointment, which was praised almost universally by Republicans and Democrats alike, the naming of Starr as independent counsel 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, including insinuations of foul play in the 1993 suicide of White House deputy counsel Vince Foster. Indeed, he appeared to be moving briskly toward the Clintons’ inevitable exoneration in Whitewater. (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.

For reasons beyond the unethical maneuvering that removed his predecessor, Starr was a controversial choice. Lacking any background as a prosecutor, his partisan credentials appeared to be his only qualification for the job. He proceeded to hire experienced but highly partisan prosecutors as his 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. Eventually Starr hired a few Democratic deputies, but Republicans set the legal agenda and hostile tone of the Office of Independent Counsel.

Unlike Mueller, who resigned from a lucrative partnership at Wilmer Hale immediately following his appointment as special counsel, Starr not only failed to resign from Kirkland & Ellis, but continued to receive payments as a senior partner, serve on the firm’s management committee, and advise clients. His partnership draw from the powerhouse law firm was then estimated at around $1 million annually.

His 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; his role representing the state of Wisconsin in a school-voucher case against the Clinton administration, for which he he had received payment from a right-wing foundation; and his legal advice to a conservative women’s group in support of the Paula Jones lawsuit against President Clinton.

Perhaps Starr’s most blatant legal conflict — revealed in a 1996 article for The Nation magazine that I co-authored with Murray Waas — 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 approximately one-third of its initial claim, Kirkland & Ellis insisted on a strict secrecy clause in the settlement agreement — presumably to save the firm and its star partner from the embarrassment of exposure.

Ultimately Starr was cleared by his well paid “ethics adviser,” and although the New York Times published a scolding editorial about his myriad conflicts, he suffered no consequences at all. 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 membership fee dispute with a golf course owned by the president — a dispute that Mueller denies even occurred — it is difficult not to laugh.

Yet the legacy of the Starr investigation could still provide important guidance to both the special counsel and the Trump White House.

In 1998, the independent counsel commissioned an exhaustive legal research memo that was buried for almost 20 years, until the National Archives disclosed it in response to a Freedom of Information Act request by the New York Times.

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.

IMAGE: Kenneth Starr speaks on behalf of California’s anti-gay marriage Proposition 8 during arguments before the California Supreme Court,  March 5, 2009. REUTERS/Paul Sakuma

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10 responses to “Why Kenneth Starr Deserved Censure — And Robert Mueller Deserves Respect”

  1. FireBaron says:

    One thing Starr did attempt to do in his witch hunt was follow the money. Unfortunately for him, and fortunately for the Clintons, he never managed to find anything that could trace back to him. Teflon Donnie will not be so lucky once his finances get more scrutiny.

    • Olivesfifield says:

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    • dbtheonly says:

      Flagged the spam for you.

      Money, taxes, and such certainly seem to be a sore spot for Trump.

      Trump will fire Mueller, the RWMO will cheer the end of the partisan witch hunt, and the Republicans is Congress will do nothing.

      My only question is what we do then?

      • TZToronto says:

        What can we do? Well, challenging the gerrymandering in red states will be a place to start. Some of that will have to wait until after the 2020 census, but legal remedies for current gerrymandering can help now. Huge amounts of money must be raised to overwhelm the Koch Bros.’ (and too many others’) ability to spread their lies, especially in red states. It will help, though, if Senate and House investigations can show that Russians aided Trump, et al., in fixing the 2016 election. They can’t charge the traitors, but they can certainly identify them. Painting the GOP as the party of treason could go a long way in defeating Republicans in 2018 and 2020. On the other hand, it would not be in Republicans’ best re-election interests to dig too deeply. As Drumpf said yesterday, time will tell.

        • Theodora30 says:

          Arnold Schwarzenegger has a PAC to end gerrymandering. He says he will match donations. That should pump you up.

        • planetc says:

          What we can do to help now: 1) Make sure the population understands that there is no way to prove Mr. Trump was elected to anything, and make all democratic campaigns going forward emphasize the need to Verify All Election Results. 2) Make gerrymandering illegal wherever detected. 3) Strictly limit the amounts of money that can be spent on campaigning for all state and federal offices. If candidates are limited to spending $100,000 per campaign, the financially pinched population would have a chance against the plutocrats, and candidates would demonstrate their creativity by getting their messages out via the internet and YouTube. Limit campaigns to six weeks max, and subsidize YouTube for the extra traffic they can expect.

    • Oosik says:

      Candidate Trump was quick to promise the release of his tax returns; as had been the practice of candidates for decades.

      Then as the numbers grew increasingly in his favor he began walking back on that promise.

      After winning the election it didn’t take very before he declared he wasn’t going to release them.

      Obviously he didn’t think he was going to win when he first promised to release them. In other words he was just gaming the voters with promises he figured he would never be called on.

      That said. I wish someone in the media would challenge his continuing refusal to release them with his challenges to the states refusing to comply 100% with his Voter Suppression commission. ie

      “If any state does not want to share this information, one has to wonder what they’re worried about. And I asked the vice president, I asked the commission: What are they worried about?” [Trump]


  2. kep says:

    The big difference between Starr and Mueller is that Starr was investigating the Clinton Crime Family, Mueller is investigating lies put forward by Liberals.

  3. old_blu says:

    If everyone remembers, I know I do because I’m old, President Clinton was being investigated for Whitewater when a stained blue dress floated to the surface, and he was impeached, so don’t think this is all about Trump, and Russia.
    I suspect there is some money laundering going on with Trump, so I won’t be surprised if this investigation takes another turn just like the Whitewater one did. *fingers crossed*

  4. Eleanore Whitaker says:

    I find it amusing that right wingers to this day still believe they can find something, anything to put Hillary and Bill Clinton in jail.

    Really boys? Even when it is now known that it was Peter Smith, an ultra right wing GOP operative like Ken Starr, one frat brother of Karl Rove, Grover Norquist, Reverend Ralph Reed and Erik “Blackwater” Prince?

    It was Peter W. Smith who tried in vain to get hold of Hillary’s personal emails that he had no right to invade. But then, Ken Starr never did prove any guilt of either Clinton even when his investigation took 12 years and $12 million taxpayer dollars.

    So where Starr left off, Gowdy thought he’d pick up. Didn’t work for Gowdy either who is now under Mueller’s microscope for drumming up that phony Benghazi claim against Hillary. Funny how no one dares to hold Texas Big Oil Tillerson’s feet to the fire when 11 military were killed in the first 3 months of Trump’s phony presidency. Must be if you have balls and a dick, that means you get away with it. Be born with a uterus and men in this screwed up country will draw and quarter you for slipping on an ice patch.

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