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Ken Starr says there will be “hell to pay” if Whitaker messes with Mueller

“We haven’t seen Whitaker interfere with the Mueller investigation, and that’s what remains to be seen. If he did, I think there’s going to be hell to pay.”

by Greg Walters
Nov 21 2018, 5:11pm

Special counsel Robert Mueller’s final report about the Trump campaign’s dealings with Russia has become the most hotly-anticipated document in Washington DC.

But it may be much more bare-bones than his legions of supporters expect, according to the guy who drafted the last blockbuster account of a president’s alleged wrongdoings, former independent counsel Ken Starr.

Star’s infamous 1998 Starr Report laid out Clinton’s sexual liaisons with a White House intern in lurid, minute detail, and resulted in the first presidential impeachment in 130 years.

Yet despite Trump’s countless colorful controversies, Starr doesn’t expect Mueller to write a tome-like report detailing every presidential misdeed. If only for one simple fact: Mueller’s marching orders are very different, and more constrained, than Starr’s were 20 years ago, Starr told VICE News.

“What I do know is that the regulations under which [Mueller] was appointed do not contemplate a fulsome kind of report,” Starr said. “What is contemplated is actually somewhat minimal.”

In a wide-ranging interview with VICE News, Starr discussed his expectations for Mueller’s endgame and parallels with his own four-year probe of Clinton. He also addressed persistent questions of obstruction of justice, and Trump’s recent appointment of Matt Whitaker as acting attorney general.

Asked if he sees reason to be concerned about Trump’s approach toward Mueller, Starr replied: “Oh, yes.”

Ultimately, he sees the fate of the Mueller report resting largely in the hands of two men, widely seen as close Trump allies: acting attorney general Matt Whitaker, and Republican Senator Lindsey Graham.

“HELL TO PAY”

Ken Starr believes there’s reason to be nervous about Trump’s attacks on Mueller
Acting Attorney General Matthew Whitaker speaks to state and local law enforcement on efforts to combat violent crime and the opioid crisis in Des Moines, Iowa, U.S., November 14, 2018. REUTERS/Scott Morgan

This month Trump named Whitaker, a loyalist with dubious credentials, acting attorney general, stoking fears that the move was a first step toward clipping Mueller’s wings.

“Trump was looking for someone who’d do what he wanted them to do: kill the whole Mueller investigation,” said Nick Akerman, former assistant special Watergate prosecutor. “There’s no other explanation for it.”

Starr is more relaxed about Whitaker, saying he believes the acting AG will be able to check his personal criticisms of the Mueller probe at the door.

“We haven’t seen Whitaker interfere with the Mueller investigation, and that’s what remains to be seen,” Starr said. “If he did, I think there’s going to be hell to pay.”

Starr has accused the presiding AG during his own investigation, Janet Reno, of “moral cowardice” for not sticking up for him publicly against Clinton’s allies’ attacks in the 90s. He now says it’s too soon to slap Whitaker with the same criticism.

Read: Ken Starr: Mueller may indict Trump after his presidency

But Whitaker will play a major role in the final scenes of the Mueller probe, Starr says, thanks to the specific rules governing the special counsel’s appointment.

We haven’t seen Whitaker interfere with the Mueller investigation, and that’s what remains to be seen. If he did, I think there’s going to be hell to pay.”

Mueller’s regulations call for a “confidential report” to be sent to the attorney general at the Department of Justice at the end of his investigation, explaining his decisions to prosecute or not. The AG will then have broad leeway to simply stuff it in a drawer, legal experts told VICE News.

By contrast, Starr’s final audience was Congress.

The difference follows the expiration of an old law. Starr’s probe took place under a different “independent counsel” statute from the 1970s, which required him to ship a report directly to Congress about any impeachable offenses he uncovered.

Read: Congress has two ways it might try to save Mueller. Both have huge downsides.

Starr responded with a 453-page report (plus over 2,000 pages of appendices) on Clinton’s alleged perjury and obstruction of justice over his affair with 22-year-old intern Monica Lewinsky. The account was so graphic, it was dubbed “a voluminous work of demented pornography” by the journalist Renata Adler.

If Whitaker does try to stifle the Mueller probe, Starr predicted Senator Graham will play a key role in protecting Mueller, as the likely incoming chairman of the Senate Judiciary Committee.

“I think that if he, the president, does something untoward, in terms of interfering with the orderly completion of the investigation, the Senate will find some way to assert itself,” Starr said. “First, I think he will have lost the incoming chairman of the Senate Judiciary Committee, who has basically said, ‘thou shalt not.’”

Starr also expects newly empowered Democrats in the House of representatives to assert themselves.

Democrats in the House will have the power to fight Trump in court for the right to review Mueller’s findings, and will likewise be able to subpoena Mueller himself to testify, legal observers said.

Any legal fight over the Mueller report could quickly escalate to the Supreme Court.

“I think the House Judiciary Committee could subpoena a Mueller report, and I think they’d likely prevail, but it’s not 100% certain,” said William Treanor, who was an associate independent counsel during the Iran Contra scandal in the late 1980s.

THE ENDGAME

Ken Starr: Don’t expect a Starr Report from Bob Mueller
Special Counsel Robert Mueller departs after briefing the House Intelligence Committee on Capitol Hill in Washington, U.S., June 20, 2017. REUTERS/Aaron P. Bernstein/File Photo

If Mueller uncovers serious wrongdoing by Trump, he’ll have essentially two potential avenues for going after the president, Starr said.

Mueller can either rely on Congress to use his findings to launch an impeachment, provided the Department of Justice doesn’t stifle them. Or he can wait for Trump’s presidency to end, and pursue a “criminal approach” against Trump afterwards, Starr said.

“Those are the two avenues that I see,” Starr said. “As long as the President is in office, the Justice Department would not authorize an indictment.”

Starr said the law itself appears to allow for a sitting president to be indicted — but that Mueller would likely follow existing departmental guidelines against doing so.

Read: Trump pretty much just admitted that he picked Whitaker to kill Mueller's probe

But other members of past special investigations into presidential scandals differed over whether Trump necessarily won’t be charged while in office.

“As long as the President is in office, the Justice Department would not authorize an indictment.”

The special counsel regulations specifically say that Mueller should follow other DOJ rules, Treanor pointed out.

“Mueller has to follow existing Department of Justice guidelines, and the long-standing department position is that a sitting president can’t be indicted,” Treanor said.

But if Trump’s crimes are shown to be truly heinous, the old DOJ rulebook might get thrown out the window, Akerman argued.

“If the evidence shows that Trump was in bed with the Russians, that he committed treason, then that would be enough to indict him,” Akerman said. “Just because it’s in the guidelines, doesn’t mean you can’t do it.”

Cover image: Ken Starr on VICE News Tonight on HBO.