Why you should care
The war over what Congress and the American public will hear from the Mueller Report began 20 years ago.
Based on OZY’s hit podcast The Thread, which delves into surprising connections in history, The Mueller Thread weaves together the strands linking the sprawling investigations around President Donald Trump.
Back in August, the National Archives released a long-secret report from 1999 about the only independent investigation to result in the impeachment of a president — so far. Prepared at the order of a federal court, the report came in response to complaints that Kenneth Starr, the independent counsel investigating President Bill Clinton, had violated the law by leaking grand jury materials to members of the press. The report’s release coincided with the Supreme Court confirmation of Brett Kavanaugh, who was among the lawyers under Starr investigating Clinton. And while the report, which does not mention Kavanaugh, ended up having no influence on his confirmation, it did help confirm something else: just how leaky the independent counsel’s ship was during the Starr investigation.
Why should the porousness of the Starr team matter now, especially with Kavanaugh safely ensconced on the Supreme Court for life? Well, House Intelligence Chairman Adam Schiff, a California Democrat, recently threatened to call Robert Mueller to Capitol Hill and subpoena his investigative findings if Attorney General William Barr does not make public the special counsel’s highly anticipated report. Could Schiff actually accomplish this end run around the attorney general and force Mueller to testify? In short, no. Why? You can thank Starr.
The Starr team’s off-the-record media communications were extensive.
To protect the rights of victims and defendants, federal investigators are supposed to avoid disclosing details about ongoing investigations, especially any information obtained during grand jury proceedings. Exhibit A for the hazards of publicly commenting on an ongoing investigation are then FBI Director James Comey’s comments about the investigation into Hillary Clinton’s emails, which might have influenced the outcome of the 2016 election.
Exhibit B, though, would have to be the media strategy of the office of independent counsel Ken Starr. A former D.C. Circuit Court of Appeals judge and solicitor general, Starr was widely respected and regarded as a moderate, mild-mannered conservative. When his dreams of a Supreme Court seat went up in smoke with Clinton’s election in 1992, Starr went into private practice, only to emerge a year later to accept the role of independent counsel in the Whitewater investigation. Starr was authorized to investigate whether “any individuals or entities” had committed a federal crime “related in any way” to the Whitewater land development in Arkansas, and over the next five years, Starr’s investigation kept expanding in new directions, from the suicide of White House lawyer Vince Foster to firings in the White House travel office to, eventually, Monica Lewinsky.
In the resulting, famously salacious 445-page Starr Report, the word “Whitewater” appears just four times while “sex” or a variation appears 581 times. Starr was not out to get the president from Day 1, University of Arizona law professor Andrew Coan argues in his new book Prosecuting the President, but over time the independent counsel lost his focus and became intoxicated with power. “Special prosecutors do face temptations,” says Coan, “and there is a danger in the role of losing all sense of proportion.”
Starr’s expansive remit also ended up spilling over into his views of what constituted permissible contact with the media about an ongoing investigation. The Starr team’s off-the-record media communications were extensive and were not limited to responding to reporter queries but often were made to friendly journalists in an effort to cultivate a more favorable image for the counsel’s office. The leaks ultimately prompted an investigation, and even though Starr was cleared of the narrow charge of leaking grand jury material regarding the Lewinsky scandal, he was widely regarded as having overstepped Department of Justice guidelines and reasonable prosecutorial discretion. As a result, the independent counsel statute that had given him that kind of power fell into bipartisan disfavor and was allowed to expire in 1999.
To create a new framework for special investigations that would remedy some of the issues that arose with Starr and other presidential probes, Attorney General Janet Reno established a task force chaired by constitutional lawyer Neal Katyal (later solicitor general under Barack Obama). To help rein in overzealous prosecutions, the new special counsel rules required that special prosecutors report their findings directly to the attorney general and go by the book when it came to discussing ongoing investigations. In a law review article he wrote after working for Starr, Kavanaugh too endorsed this type of approach, noting that “the ordinary rules of prosecutorial secrecy should apply to evidence gathered during an independent counsel investigation.”
So what does this mean to the Trump-Russia investigation? Given that Mueller has already proved himself to be a very by-the-book prosecutor and the special counsel rules do not support allowing Congress to compel disclosures from him, it is unlikely Schiff can deliver on his threats. To hear more from Mueller, Congress and the American people will have to rely on public pressure on Barr, not a subpoena. Such transparency — or “sunlight,” as Katyal once put it — is also built into the special counsel regulations. To silence or limit a special counsel report, Barr would have to do so in broad daylight, and perhaps Schiff is hoping to remind him of exactly that.
Read more: How Michael Cohen’s reveal reduces the risk of impeachment.