David E. Kendall, an attorney at the Washington law firm Williams & Connolly LLP, has represented former president Bill Clinton and former secretary of state Hillary Clinton since 1993, including during impeachment proceedings stemming from Kenneth W. Starr’s independent counsel investigation of President Clinton.
In his Dec. 24 Sunday Opinion commentary, former Whitewater independent counsel Kenneth W. Starr proposed a "reset" of the Russia investigation in which Congress "steps up" to establish a bipartisan investigative panel and the "executive branch's approach" changes from criminal law enforcement to some kind of nebulous fact-finding. Despite its bland profession of respect for the probe, Starr's column was really just a subtler version of suddenly pervasive efforts by Trump apologists to undermine the investigation into Russian tampering with the 2016 election.
The reasons given for Starr’s reset are wholly specious: There is ostensibly a “drumbeat of criticism” aimed at special counsel Robert S. Mueller III which “has become deafening,” including “cascading revelations of anti-Trump bias.” This is true only on Fox News, in President Trump’s tweets and in the shoe pounding of the Freedom Caucus at legislative hearings.
The claims of bias amount to some private comments of an FBI official criticizing candidate Trump (and other candidates). Despite the fact that government employees are entitled to have political opinions (so long as they do not interfere with their work, and there was no evidence of this), Mueller promptly removed this official. Additionally, Mueller "has chosen poorly by having smart but deeply politicized senior aides" who have "virulently anti-Trump political leanings." The evidence for this? Some of his staff have made past political contributions to Democratic candidates. Also, the FBI deputy director, who is not even on Mueller's team, has a wife who ran for a state legislative seat in 2015 with financial support from a friend of the Clintons, after the deputy director (who was not then deputy director) disclosed and cleared this internally at the FBI.
Thin gruel indeed, since the current leadership of the Justice Department has contributed heavily to Republican candidates and since Starr himself, when appointed to investigate a Democratic president, had been a Republican donor and had given assistance to a conservative group filing a friend-of-the-court brief in a case involving President Bill Clinton.
Starr decries the “heavy overreliance on the criminal-justice system” in investigating the problem of Russian meddling in the U.S. electoral process and advocates for moving “toward decriminalizing presidential politics.” For those of us who lived through the five-year Starr pursuit of Clinton, this calls to mind Oscar Wilde’s comment on Dickens’s depiction of the death of Little Nell in “The Old Curiosity Shop”: “One must have a heart of stone to read the death of Little Nell without laughing.” The Starr investigation was the paradigm of criminalizing presidential politics.
More important, the proposed "Watergate solution" ignores the fact that in January, U.S. intelligence agencies, through the director of national intelligence, made public a formal assessment "with high confidence" that Russian President Vladimir Putin "ordered an influence campaign in 2016 aimed at the U.S. presidential election" whose goals were to "undermine public faith in the U.S. democratic process, denigrate Secretary [Hillary] Clinton, and harm her electability and potential presidency," while favoring candidate Trump. Much of the fact-finding that Starr calls for has been done.
This Russian tampering is a fundamental threat to our democracy, and must be addressed in two ways: by improving our safeguards against foreign manipulation of our electoral process, and by investigating, publicizing and prosecuting past criminal conduct involving this meddling. The former must be addressed by Congress and the Trump administration, but the latter is properly the province of the independent investigation led by Mueller — a decorated Marine combat veteran, a Republican and a highly esteemed, long-serving law-enforcement professional.
Starr's misleading call for a "Watergate model" ignores the work of the Watergate Special Prosecution Force. It is true that the investigations of the Senate Watergate Committee in 1973 and of the House Judiciary Committee in 1974 were generally bipartisan and produced valuable information. But equally important was the work of the Watergate special prosecutor, first Archibald Cox and then Leon Jaworski, who fairly and thoroughly investigated criminal wrongdoing by President Richard M. Nixon and many of his top officials. It was that office's successful pursuit of the Nixon White House tape recordings all the way through the Supreme Court, and its successful prosecution of several Nixon officials, that finally revealed the facts about Watergate.
So while a thorough, public, fair and bipartisan congressional investigation of Russian tampering would be terrific, good luck with that. Benghazi hearings anyone? The House and Senate intelligence committees have for months been conducting hearings on these issues, but these have been, particularly in the House, partisan, meandering, contentious and closed-door.
And calling for a vague “fundamental . . . reset within the halls of the executive branch” on the part of the Trump administration is also utterly unrealistic. Firing the special counsel and all his staff would be the most likely “reset” by this White House.
The real “Watergate model” here is to hope for the best from Congress but protect and continue the work of the special counsel. In five months, it has obtained two convictions and two indictments. It has worked in secret and without leaks. It should be left to finish the work it has so ably begun: investigating thoroughly, prosecuting when the evidence justifies it and closing up shop silently — without harshly criticizing those not charged — when prosecution is not warranted.
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