This column first appeared on Creators.com.
When the Office of Special Counsel completes its assigned tasks and sends its findings to Attorney General William Barr, Americans will expect to learn what is in that document. Despite recurrent warnings that Barr can legally withhold some or even all of the “Mueller Report,” those expectations of transparency must be fulfilled.
The matters investigated by former FBI director Robert Mueller are so fundamental to the national interest that there is no alternative to full disclosure. It is a need that outweighs Justice Department policy designed to safeguard the reputation of individuals who are investigated but not charged with any crime.
Republicans seeking to protect Donald Trump from Mueller’s most damaging findings may cite that traditional policy to argue that Barr should refuse to release the final report that the Office of Special Counsel must send to him. But it is worth remembering how little attention was paid to such concerns when the partisan roles were reversed.
Almost exactly 17 years ago, on March 21, 2002, the Office of Independent Counsel released a five-volume, two-thousand-page-plus report under the anodyne title In re: Madison Guaranty Savings and Loan Association, the name of the tiny thrift institution that had financed Bill and Hillary Clinton’s ill-fated rural real estate investment — more popularly known as “Whitewater.” Given the failure to find any actual evidence that the Clintons had done anything wrong in that financial fiasco — except to trust their deranged partner Jim McDougal and lose about $40,000 — the final Whitewater report had to acknowledge their legal innocence.
But Robert Ray, the Republican prosecutor who had taken over preparation of the report from Kenneth W. Starr, deliberately sought to cast suspicion on the Clintons despite the fact that neither of them was ever charged in that investigation. (Ray may have believed that denigrating then-Senator Clinton would enhance his popularity among his fellow Republicans in New Jersey, where he was simultaneously seeking a U.S. Senate nomination, an ambition he abandoned within a few weeks.)
Throughout the final report’s tidal wave of turgid prose — at $73 million, or more than $33,000 per page, certainly among the costliest publications in human history — Ray tried to concede failure without exonerating the investigation’s main targets. To read the report was to see how stubbornly he and his fellow OIC prosecutors had evaded any obligation to simply admit that those targets were in fact innocent. Instead, the report repeatedly complained of “insufficient available evidence to establish [guilt] beyond a reasonable doubt” — and reviewed at great length all the evidence that supposedly indicated wrongdoing.
By March 2002, most Americans had long since forgotten what exactly Kenneth Starr, his persistent associates, and the Republicans who sponsored his inquest had ever hoped to prove. The Whitewater allegations were always vague and constantly shifting, as every headlined accusation quietly evaporated. The few clear and pertinent questions about the development deal and its financing were answered with finality by December 1995, a little more than a year after Starr took over the probe.
As the Whitewater final report showed, Starr’s prosecutors had spent years trying to prove that Hillary had once lied or concealed something — and to them the actual substance of the supposed lie didn’t really matter. They tried to prove that she had testified falsely about minor matters at her law firm, or whether McDougal had paid his legal bills on time. Taking up hundreds of pages of small print, Ray’s account of that phase of the investigation seemed numbingly pointless.
The notion that anyone might face criminal charges over such minutiae would have been hilarious, if it weren’t so sinister. Somehow the authoritarian style of prosecution didn’t seem to bother official Washington or the national press corps, which had swooned over every leak from Starr’s office.
In every respect, the matters currently under investigation by the Office of Special Counsel differ from the Whitewater fantasy. That “scandal” was inconsequential and essentially non-existent — while this scandal could hardly be more serious and pressing. The law is different now too, because the Independent Counsel Act was allowed to expire in 1999 after Starr’s embarrassing performance. Unlike the independent counsels of yore, mostly Republicans who ran rampant during Clinton’s administration, the special counsel is under direct Justice Department supervision and is expected to observe the department’s rules.
But if Attorney General Barr — or any other Republican official — argues that the president’s privacy must prevail over public interest in the Mueller final report, remember this. Their zealous prosecutors seized that last opportunity to tarnish Hillary Clinton in the Whitewater final report, although no charge could be sustained against her. And nobody in official Washington spoke a word of protest.