Ken Starr’s investigation and Robert Mueller’s — compare and contrast

E.J. Dionne claims that “the attacks on [Robert] Mueller push us closer to the precipice.” But if we’re close to the precipice now, where were we 20 years ago when Ken Starr was relentlessly attacked by Democrats and their media pals while he investigated Bill Clinton?*

Don’t expect an answer from Dionne. He’s not intellectually honest enough even to mention Starr in his rant.

But charges of hypocrisy against one party and its backers can often be turned around. Yes, the response of Democrats generally, and Dionne in particular, to attacks on Mueller is inconsistent with their posture during the Ken Starr era. But did Starr staff up with conservatives and Republicans? If so, did Republicans criticize him for doing so, as they now criticize Mueller for loading up with Hillary Clinton supporters and other partisan Democrats?

Many members of Starr’s staff were Republicans. Some of them, young and relatively unknown at the time, have become important conservative players. Alex Azar, now Secretary of HHS, was on Starr’s staff. So was Brett Kavanugh, now a judge on the D.C. Circuit and a leading contender for the next Supreme Court vacancy (if it opens up while Trump is president).

Rod Rosenstein also worked for Starr. He has gone on to serve under Republican and Democratic administration but is, and was, a Republican.

However, according this Washington Post article from 1998, Republicans did not dominate Starr’s team:

A look at voters’ rolls and interviews with members of Starr’s staff indicate that many, if not most, of the lawyers on this investigation are registered Democrats.

The most prominent Democrat was Sam Dash of Watergate fame. He worked for Starr from 1994 through 1997 with a one-year break in between.**

Ray Jahn, who prosecuted Jim McDougal, was a registered Democrat. He testified that he told Starr when he was hired that he hoped to find evidence exonerating Bill Clinton.

Karen Immergut, who questioned Monica Lewinsky, was a longtime Democrat when she went to work for Ken Starr. She re-registered as an independent upon taking that position.

Mark Tuohey was one of Starr’s first hires. At the time, the Washington Post reported:

Tuohey is well-known in local Democratic Party circles. . .He is close to some Clinton administration officials, including Associate Attorney General Jamie S. Gorelick, and last year hosted a party for Attorney General Janet Reno at his Washington home.

The Post added that Tuohey’s selection, and that of two other prosecutors, was intended in part to allay fears that Starr’s investigation would be a partisan affair.

Show me the counterparts to Dash, Jahn, Immergut, and Tuohey among the lawyers Mueller brought in for his investigation. I don’t believe they exist. Show me evidence of anything approaching the ideological/partisan balance the Washington Post found when it looked at Starr’s team. I know it doesn’t exist.

Mueller, to be sure, is a Republican. But dislike for Trump is pretty common among GOP establishment figures (and Mueller is nothing if not “establishment”). In any case, the partisan imbalance on his staff renders comparisons to Starr’s team inapt. Remember this the next time some “Democratic strategist” tells Laura Ingraham that this or that member of Starr’s team clerked for Justice Scalia or belonged to the Federalist Society.

There are additional distinctions between the two investigations that undermine attempts to deflect criticism over the partisanship of Mueller’s staff by citing Starr’s operation. Here’s a key one: Starr investigated a banking scandal, a suicide, and later a sex scandal. Mueller is investigating an election.

Specifically, he’s investigating claims by one party that the other party’s candidate broke the law in his pursuit of the presidency. Partisan affiliation therefore means more in Mueller’s investigation than it did in Starr’s.

It would be objectionable for a team of lawyers from one party to handle the investigation of non-political wrongdoing by a president from another party. (As we have seen, Ken Starr didn’t let this happen).

It is far worse for a team of lawyers from one party, here the Democrats, to handle the investigation of allegations, pushed as an article of faith by that party, that a Republican presidential candidate worked with a hostile foreign government to defeat Hillary Clinton in an election. Now we’re talking about an alleged political crime — one that goes to the core issue of which political party should, by rights, hold power.

Mueller should have made sure that his team of lawyers was not dominated by partisan Democrats — i.e., those who gave money to Democratic presidential candidates. Mueller did not do so.

Worse, Mueller selected lawyers who donated to Hillary Clinton, and in one case a lawyer who has represented the Clinton Foundation. According to the book Shattered: Inside Hillary Clinton’s Doomed Campaign by Jonathan Allen and Amie Parnes, within 24 hours of Hillary’s concession speech, Team Clinton began pushing the theme that Trump colluded with the Russians and that the collusion cost her the presidency.

Mueller’s investigation was opened to investigate the collusion claim. It can be viewed as the fruit of Team Clinton’s labor (and the FBI’s).

As I said when I first wrote about Mueller’s staffing decisions, the presence on his team of lawyers who have donated to Democrats is not problematic in itself. It’s unrealistic to expect a prosecutor to assemble a large or even mid-size team that does not include financial contributors to Dems.

But contributors to Clinton’s 2016 campaign are different matter. As bitter as the Clintonistas are about losing the election (or rather having it “stolen” by the Russians) — and as focused on attributing the defeat to collusion between Trump and Putin — it seems unconscionable that attorneys who backed Clinton financially would be on a team that is investigating alleged collusion between Trump and Putin.

Ken Starr’s investigation posed no such problems. Starr wasn’t investigating claims that Bob Dole was robbed in the 1996 election.

The other major distinction between Starr and Mueller arises from Mueller’s friendship with James Comey. Mueller and Comey go way back. They were comrades-in-arms.

Comey may be a key witness, perhaps the key witness, if (as seems likely) Mueller investigates “obstruction of justice” by Trump. There was no analogue to this problem in Starr’s investigation. No one claimed that Starr was even casually acquainted with Jim McDougal, Jim Guy Tucker, Webb Hubbell, Monica Lewinski, Linda Tripp, or any other witness or player in that investigation.

Mueller nonetheless may turn out to be an even-handed prosecutor in this matter. We’ll see.

But two things are already clear. First, raising questions about Mueller and his team hasn’t brought us anywhere near “the precipice.” The questions are legitimate. Second, there is no genuine argument that Ken Starr’s probe of Bill Clinton was plagued by bias and potential conflicts of interests the way Mueller’s is.

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* Remember how the media camped outside of Starr’s house every morning and filmed him getting his newspaper, or taking out the trash, or getting into his car? Why hasn’t the media staked out Mueller’s residence?

** Dash resigned from Starr’s team in 1998 after Starr complied with the demand of the House Judiciary Committee that he testify before it. Starr was told that if he did not comply, he would receive a subpoena.

Dash claimed that this was some sort of “separation of powers” violation. The claim was absurd, but need not be addressed here. The point is that Starr selected for his team a very high profile Democrat who had been through the Watergate wars on the Democrats’ side.

By the way, I’m told that when Dash saw the video of Bill Clinton’s false testimony regarding Monica Lewinsky, he told fellow members of Starr’s team that Clinton should be removed from office.

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