We are not reliving Whitewater: Differences in Starr and Mueller investigations

Former independent counsel Ken Starr and former press secretary for President Clinton Joe Lockhart faced off on CNN last week. The showdown came approximately 20 years after Starr led an investigation into all-things-Clinton, including his sexual affair with a 23-year-old White House intern. Starr’s probe led to Clinton’s impeachment in the House of Representatives and acquittal in the Senate in 1999.

Amidst the hand-wringing over whether President Trump could be indicted or impeached (for possible federal campaign finance violations in connection to his former lawyer Michael Cohen) comparisons with the Starr investigation are inevitable — and warranted. 

{mosads}During the interview, Starr makes one critical point of legal synergy.

“I disagree with the Justice Department’s guidelines” that a sitting president cannot be indicted, he said, “but it is the historic position of the department.”

Today’s much-touted ban on indicting a sitting president is not found in the Constitution, or in a statute passed by Congress or in a Supreme Court case or in a regulation promulgated by an agency. It’s contained in a memo by DOJ lawyers who answered to Clinton at the time of its drafting in 2000.

Starr had his own experts produce an opinion on the same topic in 1998. His team reached the opposite conclusion — that a president can be indicted while in office — as did lawyers working for Leon Jaworski, the independent counsel who investigated President Nixon. Nixon resigned in 1974 rather than face impeachment.

The fundamental legal difference between the Starr and Mueller probes has to do with the law governing the process of investigating a president for potential criminal wrongdoing. 

Starr acted pursuant to a statute passed by Congress. Called the Ethics and Government Act of 1978, the law authorized Starr to send information he collected to the United States Congress and to provide recommendations related to impeachment of the person under investigation. Starr’s report to the House of Representatives included sexually explicit details on Clinton’s affair with White House intern Monica Lewinsky although, as we know, Clinton himself was not indicted.

The Supreme Court upheld the statute as constitutional despite its creation of a prosecutor who didn’t answer to the president — the boss of all federal prosecutors under Article II of the Constitution. The law lapsed in 1999.

What replaced it was not a statute, but a regulation. A regulation is a rule with the power of law created by an agency instead of Congress. Regulations are constitutionally problematic because they are not passed by Congress, but by the executive branch. Most of the time, regulations must be promulgated pursuant to what’s known as the notice-and-comment process, which requires that agencies get the public’s input before they become law.

The regulation governing special counsel Robert Mueller was created internally by DOJ lawyers who report to the president. The regulation does not authorize the creation of a comprehensive report to Congress; instead, it requires the special counsel to forward a “confidential” report to the attorney general. Any further disclosure — to Congress or anyone else — is up to Attorney General Bill Barr, a Trump appointee who answers to the president.

Here’s the irony: The two functional barriers to holding a president accountable for wrongdoing short of impeachment under the current legal regime — i.e., the “no indictment” rule and the “confidential report” rule — were both created by people within the chain of command to the Executive Office of the President.

On the facts, the Mueller investigation is much broader, deeper in scope, and substantially more serious than the Starr investigation ever was. 

The Clinton probe began as an investigation into a failed Arkansas land deal brokered by Clinton friend and real estate investor Jim McDougal. McDougal later bought a small savings and loan business. He was convicted of fraud in connection with that enterprise, along with his wife, Susan McDougal; Jim Guy Tucker, who was Arkansas governor after Clinton; and Webster Hubbell, Hillary Clinton’s former law partner. A total of 15 people were convicted of various charges in connection with Whitewater.

The Starr investigation was expanded to include (among other tangential matters) the investigation of Clinton’s spurious denial in a civil deposition of his sexual affair with Lewinsky. That salaciousness is what most people remember about Whitewater these days — an era in which sexual misconduct by those in the highest offices in the land is shrug-worthy, at best.

So far, the Mueller probe has secured a conviction of former Trump campaign chairman Paul Manafort and guilty pleas from former Trump aides or associates Michael Cohen, Michael Flynn, Rick Gates, Alex van der Zwaan, George Papadopoulos, and a guy from California named Richard Pinedo. Roger Stone, Konstantin Kilimnik, 13 Russian nationals, three Russian entities and 12 Russian military intelligence officers have also been indicted. There are at least 16 other ongoing investigations into Trump and his businesses, not including what’s happening in Congress now that the Democrats control the House.

{mossecondads}This is largely as it should be. The assault by the Russians on the integrity of our electoral process is what distinguishes today’s investigations from Starr’s nearly four-year effort.

The final difference between then and now is the onslaught of social media and so-called “fake news” into the legal and political landscape. Whitewater operated under the media microscope of a handful of established journalistic outlets that most people trusted because they followed industry norms aimed at preserving the legitimacy of the profession. Social media, Twitter and Russian bots did not exist. Today’s 24/7 news cycle, which thrives on the White House stoking chaos — and enhancing presidential liability — in 280-characters, was unthinkable back then.

One can only imagine how both the Clinton White House and the Starr investigation would have reacted to the meteoric sophistication of technology today — something that the laws cannot begin to get ahead of, let alone account for.

Kim Wehle is a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation. She is also a professor at the University of Baltimore School of Law. Her forthcoming book, “How to Read the Constitution and—Why,” will be published in June. Follow her on Twitter @kim_wehle.