What would Mueller say?

Past special prosecutors explained themselves – and they all faced the same problems

What would Mueller say?

Past special prosecutors explained themselves – and they all faced the same problems

For nearly two years, Robert Mueller’s silence was a virtue. It meant the special counsel was focused on his investigation — too busy for news conferences, too stoic for Sunday shows, too dignified for Twitter, too squeaky-clean-Marine for leaks. Eventually, his work would speak for itself.

Outlook • Perspective
Carlos Lozada is the nonfiction book critic of The Washington Post and the winner of the 2019 Pulitzer Prize for criticism. He has also served as The Post’s economics editor, national security editor and Outlook editor. Follow @CarlosLozadaWP
Illustration by Anthony Gerace

Except, in the two months since the special counsel completed and delivered his report on Russian electoral interference, just about everyone save Mueller has attempted to speak for it. Attorney General William Barr offered a tendentious reading. President Trump claimed exoneration. Congressional Democrats pointed to potential obstruction of justice and called for hearings. GOP leaders told everyone to move on. Mueller’s interruption came in writing, informing the attorney general that his depiction of the report had shortchanged its “context, nature, and substance” — a criticism Barr dismissed as “a bit snitty.”

Anthony Gerace for The Washington Post

Past prosecutors investigating presidents have not let their reports and indictments stand alone. Leon Jaworski, the Watergate special prosecutor who served through President Richard Nixon’s resignation, published a memoir on his work two years later. Lawrence E. Walsh, the independent counsel who scrutinized the Iran-contra affair for more than six years, wrote a lengthy book about it. And Ken Starr, who dug into Whitewater only to produce an explicit account of the Bill-and-Monica saga, delivered a memoir on the inquiry two decades later. For all the details in their original reports, these men felt compelled to say more, to make it personal.

The prosecutors recount what they were doing, thinking and hoping throughout their investigations, and how they viewed the aftermath. They linger on victories and cop to a few regrets, their insights and pettiness mingling with deep constitutional concerns. They obsess over their public image, admit doubts about their writ and power, encounter antagonists, and strike unlikely alliances — all with a generous dose of self-serving hindsight. More than big reveals about Nixon, Reagan or Clinton, these books are self-portraits. The authors betray what is best and worst in themselves and in their tasks, and how it feels to be caught in the hinges of history in those moments when our checks and balances feel entirely out of balance.

House Democrats now want Mueller to be heard, arguing that much remains unanswered and unexplained. They’ve asked the special counsel to testify in public, even though he appears reluctant, reportedly preferring to speak privately. According to one survey, 56 percent of voters want to hear from him. Mueller’s silence now seems less a virtue than an unaffordable luxury. I do hope the special prosecutor sits before Congress to help us understand his investigation and conclusions. But, along with every publishing house on the planet, I’d also love an extended Mueller reflection. It might tell us more about Robert S. Mueller III himself, and about how he grappled with the limits of executive accountability, than about Russian schemes or White House intrigue. That would help, too.

As soon as they accept their appointments, special prosecutors face competing pressures: They must conduct their investigations thoroughly yet speedily, while the targets of their inquiries do everything possible to slow them down — and then complain about how long the probes are taking and how much they cost. “We found ourselves between the hammer and the anvil,” Walsh writes in “Firewall,” his Iran-contra memoir. “Congress was trying to rush us to a superficial conclusion, while the national security community tried to delay our progress.”

Walsh’s investigation spanned Cabinet agencies, the White House, private enterprises and multiple countries, and he was constantly stalled by players who refused to cough up key notes, hid behind executive privilege or simply did not tell the truth.

No surprise, the presidents’ attorneys present recurring rivals. In “The Right and the Power,” Jaworski gripes about White House lawyer J. Fred Buzhardt’s holdups in delivering vital material — “Buzhardt was always full of excuses” — even as he developed an unexpected admiration for White House Chief of Staff Alexander Haig. “I never found him less than honorable,” Jaworski writes. In “Contempt,” Starr contends that Clinton lawyer David Kendall had a simple strategy: “Delay, delay, delay. Obfuscate the truth.” In fact, delays are an ongoing grievance in these books, usually with lower stakes: Jaworski protests about being kept waiting at the White House gate on a snowy day, while Walsh was stalled in a “seemingly unheated” lobby at the Old Executive Office Building for a half-hour before a meeting. (That’s cold.)

By Leon Jaworski. Reader’s Digest Press. 305 pp. (1976)
By Lawrence E. Walsh. Norton. 544 pp. (1997)
By Ken Starr. Sentinel. 338 pp. $28. (2018)

The prosecutors also argue that, in the tug between serving the nation and protecting the president, an attorney general often chooses the latter. Starr complains bitterly that Attorney General Janet Reno would not back him up when his office endured attacks from other parts of the administration, even accusing Reno of “moral cowardice.” Walsh offers damning assessments of the nation’s top law enforcement officials — not just Attorneys General Edwin Meese and Richard Thornburgh but also one William P. Barr, who led the Justice Department under President George H.W. Bush when the Iran-contra investigation was concluding.

Barr was “outspokenly hostile” toward the independent counsel, Walsh asserts, a “subservient substitute” for Bush after Thornburgh’s departure. As attorney general, Barr was critical of the Independent Counsel Act when it was up for reauthorization in 1992, arguing that it did not provide “any accountability or adequate supervision of independent counsel.” And in eerily Trumpian tones, he declared on Dec. 17 of that year that “people in the Iran-contra matter have been treated very unfairly, many of them.” A week later, former defense secretary Caspar Weinberger, indicted on counts of perjury and obstruction of justice, and several others implicated in Iran-contra received presidential pardons just weeks before Bush was set to vacate the Oval Office.

Barr authored a controversial memo in June 2018, arguing that the powers of the presidency meant a chief executive could not be properly investigated on obstruction-of-justice grounds for otherwise lawful acts (such as firing an FBI director), and that Mueller apparent obstruction theory against Trump was “fatally misconceived.” Walsh’s memoir highlights how Barr’s dismissive attitude toward the investigation of presidents has a longer lineage.

In their memoirs, the prosecutors fret over the inevitable calls by opponents to investigate the investigators, from their expenses to their supposed political leanings. Starr calls the news that his office was under a Justice Department investigation a “gut punch, and I received it with ill grace.” Walsh recalls how he was even accused of colluding with the 1992 Clinton campaign. (Now Barr, fully empowered by Trump to review the origins of the federal investigation into the 2016 campaign, which later led to Mueller’s inquiry, can take action on his long-held disdain for checks on the powers of the presidency.)

Special counsel Robert Mueller has made few public comments during or after his investigation of Russian interference in the 2016 election.

Of course, such lawyers and cabinet officers are the presidents’ men, and in their memoirs the special prosecutors spend much time parsing the presidents themselves — their character as well as their actions.

Starr had a clear opinion of the Clintons from the start, and his disdain deepened throughout the investigation. He quotes a colleague who calls the president a “lying dog,” and he hammers home his book title at every opportunity. The president “showed contempt not only for the law, but for the American people, whom he willfully misled,” Starr writes. “He also demonstrated a shockingly callous contempt for the women he had used for his pleasure.” Starr’s effort to wrap his 2018 memoir in a #MeToo sensibility (“now it seemed the culture had finally caught up with Clinton,” he writes) suffers when he devotes a scant two paragraphs to Baylor University’s recent sexual assault scandal, which forced him to step down as the school’s president and chancellor. And his unceasing attacks on Hillary Clinton are couched in terms too often reserved for strong, ambitious women: “She was smug and dismissive. Her brittle personality was evident in all our interactions . . . Hillary seemed cold and aloof, determined to make herself unlikable.”

In this memoir, Starr displays a similar determination. His setbacks are invariably the fault of bad judges, tampered juries, mendacious witnesses, biased journalists, even George Soros. Self-doubt rarely makes a cameo. Important moves are couched in the passive voice or covered glancingly. Starr justifies his renewed investigation into the suicide of Clinton aide Vince Foster, for example, on the grounds that the conspiracy theories just wouldn’t stop. How is that the proper standard? When his ethics adviser resigns, Starr doesn’t bother to call and ask why. While Starr says he regrets taking on the Lewinsky portion of the investigation, he finds “no practical alternative” to doing so, arguing that it was “clearly” related to his work. When recapping the firing of White House Travel Office personnel, he writes that Hillary Clinton “exhibited extreme high-handedness . . . but arrogance was not an indictable offense.” (It’s almost like he wishes it were.) And his purported reverence for the rule of law seems somewhat less sacred when he twice mentions the banner hanging at his headquarters during a trial in Little Rock: “We are honored by our friends and distinguished by our enemies.”

In both his report and his memoir on Iran-contra, Walsh decries the popular notion of the grandfatherly Ronald Reagan disconnected from the reckless, mid-level conspirators in his midst. Nonetheless, the perception stuck; it still does. To his credit, Walsh admits his mistakes: He underestimated the scope of his job, understaffed his office, relied on traditional document requests rather than subpoenas and got outplayed by Congress, which granted immunity to key Iran-contra players in exchange for testimony, thus neutering Walsh’s investigation. The dignified former judge who served as deputy attorney general under President Dwight Eisenhower and left a comfortable Oklahoma law practice to serve as independent counsel just seemed overmatched. “Like other tourists before him, Lawrence Walsh came to Washington and got mugged,” The Washington Post’s Mary McGrory wrote when reviewing his memoir in 1997.

Jaworksi distinguishes the public Nixon — “a willingness to listen, a readiness to learn” — from the private one, the one who materialized on the White House tapes. He originally thought Nixon would be a “good and strong” president, Jaworski admits, but after listening to the tapes, different adjectives came to mind: “sleazy,” “greedy” and “vindictive.” The tapes broke Jaworski’s faith in Nixon as a leader and his respect for Nixon as a man. During the investigation, he wanted to speak out, to put the lie to Nixon’s prevarications. “It was torture to remain silent in the face of such duplicity,” he writes. “How I longed to cry out against him so the people would know the truth!” Once the tapes showed Nixon to be who he was and the public did learn the truth, Jaworski rejoiced. “The relief I felt is impossible to describe.”

There’s a reason Jaworski’s memoir is more triumphant than the others — he got his guy, after all, and his verdict on the American people and system is thus more cheery. “In the end, Nixon was forced to resign because the people had lost confidence in him,” he writes. “He had lied too often.” Jaworski concludes that the Constitution works, but that its “real guardians” are not special prosecutors but “the very citizens [Nixon] held in contempt.”

Walsh isn’t as sure about us. Even when high-level wrongdoing is exposed, he writes, “an active citizenry” and “open government” are needed to toss out the bad guys, and he worries that voters just don’t use elections to police official misconduct. I doubt that Walsh, who passed away in 2014, would see the Mueller report exerting much influence over the 2020 election. Similarly, Starr regrets that the strong U.S. economy and Bill Clinton’s personal popularity protected the president, although he is confident that “reasonable, open-minded people”
will agree with his harsher judgments. (It must be comforting to believe that anyone disagreeing with you is simply unreasonable and closed-minded.)

Reading these three books, I tried to imagine some future Mueller memoir. Would he revel in the fundamental righteousness of the system, like Jaworski? Lament his missteps, like Walsh? Continue passing moral judgment, like Starr? Mueller obviously isn’t the crowing type, and his record suggests he’s less likely to get mugged by Washington than to track down and prosecute the muggers. And he seems less driven by moralism than bound by legalism. Perhaps that is the point of Mueller’s reticence — and part of the challenge he faces in drawing out the full implications of his findings. It would be nice to find out.


Credits: By Carlos Lozada. Designed by Lizzie Hart.