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WASHINGTON — Attorney General William Barr may have written the epitaph of Robert Mueller’s investigation, but another conservative lawyer from the ‘90s put an unmistakable imprint on the probe into President Donald Trump: former independent counsel Ken Starr.
In 1998, Starr published his official report on former President Bill Clinton’s extramarital affair with White House intern Monica Lewinsky — chockfull of lurid detail about the couple’s sexual relationship, including oral sex in the Oval Office.
It was considered so explicit that it was dubbed a “voluminous work of demented pornography” by the writer Renata Adler. And it provoked such a severe backlash that it changed how American presidents get investigated — and it's why you can't read the Mueller report. It also helped make sure Trump’s own attorney general got to make a ruling on his boss’s alleged obstruction of justice — before Congress could even review the evidence.
Starr’s report drifted so far from his original mandate, which was to investigate the Clintons’ shady land deals in Arkansas, that both Republicans in Congress and the Clinton administration agreed to rein in the power of the independent counsel’s office.
Even Starr ultimately agreed the old law should go. So did Janet Reno, Clinton’s Attorney General at the time. During Congressional hearings about the rules in the spring of 1999, Reno called big final reports a “problem.”
“We believe that information obtained during a criminal investigation should, in most all cases, be made public only if there is an indictment and prosecution, not in lengthy and detailed reports filed after a decision has been made not to prosecute,” Reno told Congress at the time. “The final report provides a forum for unfairly airing a target’s dirty laundry…. We have come to believe that the price of the final report is often too high.”
So in the summer of 1999, the old law was allowed to quietly die, and Reno’s DOJ put new regulations in place, which have governed Mueller’s entire investigation into Trump’s ties to Russia. They are the reason his final report isn’t yet public.
- The title: “independent counsel” became “special counsel.” That word change signified a major shift in the power and independence granted to the position.
- The process: The new rules put more power in the hands of the attorney general — including the right to decide how much of the investigator’s concluding document would ever see the light of day. Specifically, the old rules had called for the independent counsel to submit a report directly to Congress that documented any “substantial and credible information that an impeachable offense may have been committed” — a standard Ken Starr himself later described as a “surprisingly low threshold of evidence.”
- The power: Now, the only thing that the attorney general had to share with Congress was a notification that the special counsel’s investigation was over, and a list of every time the AG had overruled the special counsel.
The new rules required a “confidential” final report to be sent to the attorney general, granting the AG near-total discretion over how much of that final report should be shared with anyone else.
This fundamental shift rests at the heart of the battle that is now brewing between Democrats in Congress, who are pounding their desks to read the full report, and Barr, who has so far only shared a four-page letter summarizing what Mueller found.
Barr wrote that Mueller did not find that the Trump campaign colluded with Russian efforts to tip the 2016 election — or at least, that the evidence Mueller found wasn’t enough to allow him to charge a crime.
“Prosecutors can only bring charges when they believe they have evidence to prove every element of the crime beyond a reasonable doubt,” said Mary McCord, a former top DOJ official who oversaw the department’s investigation of foreign interference in the election before Mueller was appointed.
Yet crimes are not the same thing as impeachable offenses — which was what Starr was tasked with reporting to Congress. Starr’s report outlined plenty of behavior that didn’t rise to the level of a chargeable crime, such as when Clinton lied to the American people about his relationship with Lewinsky. Clinton’s public lying and “refusing to testify for six months during the independent counsel investigation,” Starr wrote, helped delay a possible Congressional inquiry. “This represents substantial and credible information that may constitute grounds for an impeachment,” Starr wrote.
Trump, of course, never agreed to speak with Mueller’s team at all, only submitting written answers to questions.
It’s easy to imagine that if Mueller had been operating under Starr’s old rules, the endgame of the Russia investigation would have played out very differently.
Congress — and anyone with access to the internet — would have been able to instantly access every relevant clue that Mueller found, and judge for themselves whether it appeared likely that the Trump campaign had actively supported or cooperated with Russian efforts to tip the 2016 election.
And they would have been able to sift through Mueller’s evidence regarding the question of obstruction of justice, too, for themselves — just like Americans did with the Starr report.
Instead, interested outsiders were only told that Mueller had not found enough evidence of coordination with Russian spies to formally include any members of Trumpworld into the conspiracy charges that were already outlined against Russian spies and internet trolls.
Mueller specifically wrote that his report did not “exonerate” the president. But uncovering a crime beyond a reasonable doubt is a far higher threshold than pointing to “substantial and credible information” that impeachable offenses occurred, like those Starr cited against Clinton.
This shift in the counsel’s threshold takes on added urgency when considering the question of obstruction of justice, especially because Mueller declined to offer a final decision on the matter.
Neal Katyal, who helped write the 1999 regulations himself, tweeted this week that Mueller may well have wanted the obstruction question to be decided by Congress.
Katyal’s argument fits with previous investigations into obstruction of justice by a sitting president: That exact charge loomed large in the impeachment proceedings against both Richard Nixon and Clinton.
But Barr, Trump’s hand-picked attorney general, issued a public ruling on the criminal question before Congress got a chance to decide for itself on the basis of Mueller’s findings. And it’s safe to say that Barr’s got a decidedly different perspective of the matter than Congress.
In fact, Barr had already telegraphed his conclusion months ago, when he wrote a lengthy, detailed memo calling the potential obstruction-of-justice case against Trump “fatally misconceived.”
While Mueller’s evidence remains unseen, the decision that there was no obstruction of justice was essentially a judgment call by Barr, said McCord.
Another attorney general could have conceivably reached a different conclusion while reviewing the same evidence, McCord added.
And until we get to see Mueller’s report, and possibly his underlying evidence, the entire country, including the President of the United States himself, will have to take Barr’s word for it.
Cover: Then-independent Counsel Kenneth Starr holds up his report while testifying on Capitol Hill Thursday, Nov. 19, 1998, before the House Judiciary Committee's impeachment hearing. (AP Photo/Joe Marquette)