Nelson W. Cunningham served as general counsel of the Senate Judiciary Committee under then-chair Joseph Biden and as general counsel of the White House Office of Administration under President Clinton. He is now president of McLarty Associates, a global strategy firm based in the District.
We’re hearing a lot these days about 13 Angry Democrats on a Witch Hunt. President Trump and his allies have made much of the fact that 13 lawyers working for special counsel Robert S. Mueller III are Democratic voters or contributors. Almost all of them are career Justice Department employees who, like most in the D.C. and New York areas, seem to lean to the left.
This has understandably raised questions about their ability to be fair. But do you remember the 36 Angry Republicans who preceded them?
Before there was Mueller, there was Kenneth Starr, the independent counsel tasked with investigating President Bill Clinton over of the course of five years. Those Angry Republicans worked for him. Starr started with the Whitewater land deal and Vince Foster’s suicide, and over more than five years also investigated the travel office firings, the handling of FBI files and the Monica Lewinsky scandal, for which Starr ultimately recommended that Congress consider Clinton’s impeachment.
The lesson from the Starr investigation is that the political makeup of independent investigations does matter — as do the checks and balances that can serve to keep such investigations from becoming a “witch hunt.” Unfortunately for Trump, it’s much harder to make the case that the Mueller investigation is improperly balanced against him than the Starr investigation was against Clinton.
Mueller himself is not only a registered Republican, but few can match his record of Republican presidential service, which includes senior appointments under Presidents Reagan, Bush 41 and Bush 43. He was named by and reports to another longtime Republican figure — and Trump appointee — Rod J. Rosenstein. Political balance is built in.
Starr, too, was already an acknowledged leader in Republican legal circles back when he was named independent counsel. He boasted senior appointments from both Reagan and Bush 41, and, in 1994, he reportedly considered running for the U.S. Senate in Virginia as a Republican. He had been a judge and an appellate lawyer yet had no experience as an investigator or prosecutor before taking on the task of investigating a Democratic administration.
A detailed review of the team he picked shows that of the 11 lawyers who served over the years as his deputy independent counsels, eight were Republican and three were Democrats. And of those eight Republicans, five went on to senior political appointments under Republican political figures: judges, U.S. attorneys, and White House and congressional aides. In other words, these were not casual or incidental Republicans.
The next level down, there were 44 lawyers who served Starr as associate independent counsels. Perhaps not surprisingly, this group included a number of career prosecutors seconded from the Justice Department and elsewhere (like Mueller’s team), and 17 of the associate counsels left no political traces.
But of those associates whose politics could be identified, fully 21 were Republicans while six were Democrats. Almost two-thirds of the 21 went on to receive (or were rewarded with) senior Republican political appointments.
Go down one level further to the assistant independent counsels and miscellaneous “counsels” and legal consultants, and you’ll find six Republicans, three Democrats and a large number with no evident political traces. Incredibly, every one of the six Republicans here previously held or later went on to hold Republican political appointments.
Overall, that’s 36 Republicans to 12 Democrats. Not even one of Starr’s Democrats went on to political appointments.
Service on the Starr investigation has become talismanic in Republican legal circles. Veterans of the investigation include Trump appointees Rosenstein (yes, Rosenstein cut his teeth under Starr), Health and Human Services Secretary Alex Azar, Circuit Court Judge Amy St. Eve, assistant attorney general nominee Eric Dreiband and Supreme Court nominee Brett M. Kavanaugh.
I have no doubt that seasoned prosecutors and investigators, Republican or Democrat, can set aside their own personal political outlook and even-handedly do the job before them. We can ask, as President Trump does, whether Mueller should have paid attention to the political complexion of his team. I suspect it simply never occurred to him to ask these career prosecutors their political views. Remember the Hatch Act?
But regardless of the politics of the Mueller team, they answer to a man with impeccable Republican credentials and integrity. And if they want to deliver an impeachment referral against the president, they will have to go through a gantlet of Republicans in the Justice Department, the House and the Senate first. That should give us confidence.
Fairness and appearances require checks and balances. The Starr team had none at the deciding level. Thirty-five motivated and partisan Republicans reported to a 36th, who in turn reported to a Republican-led Congress.
Now that was the formula for a witch hunt.