“The Right Side of History” is a podcast dedicated to exploring current events through a historical lens and busting left-wing myths about figures and events of America’s past.
On this week’s episode, hosts Jarrett Stepman and Fred Lucas discuss the Clinton era with Ken Starr, the lead investigator of the Whitewater and Monica Lewinsky scandals and author of “Contempt: A Memoir of the Clinton Investigation.” Below is a lightly edited transcript of the conversation from the podcast.
Jarrett Stepman: We’re now joined by Ken Starr, a United States circuit judge, U.S. solicitor general under President George H.W. Bush, and independent counsel during the Whitewater scandal that led to President Bill Clinton’s impeachment by the House of Representatives. He is the author of the recently released book “Contempt: A Memoir of the Clinton Investigation.” Thank you so much for joining us.
Ken Starr: My pleasure, Jarrett, thank you.
Stepman: We’ll just jump right into it here. You held the job of independent counsel during this Whitewater scandal in 1998. We, of course, have the current events tie-in. We have Robert Mueller … special counsel today for the Russia investigation. Can you explain to us what on earth the difference is between these two offices?
Starr: There are very significant differences. And so here it goes: Historically, beginning in the Grant administration, when issues would involve executive branch only … including the president, the Department of Justice or the president himself would reach out and ask someone to serve as a special prosecutor.
Now let’s jump forward to Watergate and the Nixon years. Archibald Cox, who led us into the “Saturday Night Massacre,” was a special prosecutor. He was fired. Robert Bork then appointed, as the acting attorney general, the new special prosecutor, Leon Jaworski. The rest is all history.
Part of the history that then unfolded brings us to the independent counsel. With that background of a century-plus of special prosecutors, the Congress in 1978 passed a law that [included] the special prosecutor provisions of a larger act called the Ethics in Government Act of 1978. So special prosecutors became statutory.
Then five years later, the special prosecutors had a new name, independent counsel. We had that regime for 21 years. Then that regime, passed by Congress, went away. And there was a restoration and effect of the good old days, the traditional methodology of the attorney general or the president saying, “We want someone from the outside [and] instead of calling them special prosecutor, we have the kinder and gentler term special counsel.”
Now with all that, here’s the key difference: The independent counsel and the statute in which I was appointed by a three-judge court, the special counsel, and historically the special prosecutors were appointed by the president or by the attorney general.
Stepman: I think that brings up the question: Is this a constitutional office? Is this something that is within the scope of the Constitution? We don’t hear about this at the Constitutional Convention, the debates there. Obviously, it was kind of created during the Whisky Ring scandal, I believe under the [Ulysses] Grant administration. So it’s kind of held a special place, but it’s in this kind of gray area, wouldn’t you say?
Starr: It’s a very important question because of the importance, and the foundational value, of separation of powers. The founding generation believed that separation of powers and federalism were the two great architectural protections of American liberty.
I believe this current mechanism of the special counsel is entirely constitutional, because the special counsel is simply another officer within the executive branch who reports to the attorney general of the United States. So in the discretionary operations of the Justice Department [in the] executive branch, the attorney general has these regulations under which the attorney general, or the acting attorney general in this instance, then appoints in his or her own discretion, a special counsel to achieve these values of independence of day-to-day operation.
However, I did believe, going back to the statute passed by Congress, that those independent counsel provisions were unconstitutional for a variety of reasons, including the fact, as I mentioned earlier, that the appointment power was stripped from the executive branch and deposited in and invested in the judicial branch. To some people, [it’s] “What’s the big deal?” It’s a huge deal, because in our system of separated powers, the executive branch function needs to be carried out by the executive branch, including the authority and discretion as to who to appoint.
However, the Supreme Court of the United States upheld its constitutionality in an overwhelming 7-to-1 [decision], Justice [Anthony] Kennedy not participating, in the case in the 1980s called Morrison v. Olson. But that solitary dissent in that 7-to-1 decision was authored by Antonin Scalia. Which he viewed, even though he had only been on the court for one year, two years, at that time … as he looked back on his remarkable body of work after almost 30 years on the bench, that was his finest hour, his finest opinion.
Fred Lucas: Wow. OK. I don’t want to let time pass by without asking you about a young lawyer on your independent counsel’s team, Brett Kavanaugh, and getting your thoughts about his recent confirmation to the Supreme Court.
Starr: Oh, my goodness. Well, what a great man … I would say this, as I recount in the book: Brett was at my right hand. He was with me for about four years during the long investigation. What you see now is an older version, a middle-aged version of the young Brett Kavanaugh. A brilliant, kind, compassionate [man]; for all of his brilliance, he was so humble. He was very easy for everyone to deal with. He’s sort of wildly popular with everyone because of his very great and gracious personality.
And finally he is on the court after this terrible ordeal, for which the president of the United States apologized on behalf of the nation. I think an apology was in order, because the process descended into just the depths of horror, of mistreatment, of the mob rule that Sen. John Cornyn, from my state of Texas, signaled during the original set of confirmation hearings, the disruption during the confirmation hearings. Then of course, the nadir of the entire process was the allegations that had been before Sen. Dianne Feinstein for some six weeks, before she saw fit at the 11th hour to bring them forward.
That entire process, I think, was a … I would just say this, it was a violation of the spirit of due process. The Senate is not bound by due process, [although] they do not have the power to take away human liberty or to deprive one of property. But I think the Senate Democrats behaved in an extraordinarily shameful way, and they should be ashamed, but of course they feel emboldened and empowered. I wish there were a voice, and I wish we’d heard more from Sen. Joe Manchin of West Virginia, the sole Democrat to vote in favor of Justice Kavanaugh.
Final point on this. It wasn’t so long ago that Republicans at least would set aside their own philosophy and accept, in sorrow, the fact that elections have consequences. Ruth Bader Ginsburg received over 90 votes. You might say, “Well, that was ancient history.” No, that was after both Robert Bork and Clarence Thomas.
So I think a fair-minded historian would look at this and say it’s really the Democratic side of the aisle that needs to look itself in the eye and in the mirror and say, “Is this the kind of shabby treatment we want to afford human beings who have very distinguished records—Bork, Thomas, and now Kavanaugh?”
But I’m an optimist. I hope for the best, but I expect the worst.
Lucas: During that testimony, Brett Kavanaugh talked about the Starr team. Every one on there was opposition-researched from head to toe. Is that how you recall it?
Starr: Absolutely. We were a great team, and Brett is so befitting. A very fine basketball player, even played for one year at Yale. He’s a very accomplished athlete and now he’s “Coach K” to his kids. He’s a team guy: Let’s work together, basketball is a team sport. The court of appeals [where Kavanaugh served] with such great distinction, the D.C. Circuit, is a collegial court [where] you’re in conversation with your fellow judges and so forth to try to get the right answer.
Not atypically there is certainly, as Judge Kavanaugh [wrote in] a very important Harvard Law Review piece … which did not get much attention during the confirmation process … there’s usually a better answer. People could say, “Is that the right answer or wrong answer?” There’s probably, in most judicial decision-making, a better answer. That’s what he’s going to be searching for with his colleagues.
Stepman: We’d like to get to your book, of course, which is called “Contempt: A Memoir of the Clinton Investigation.” It’s been a while since this whole investigation happened. Why now? Why 2018? Why come up with this book 20 years later?
Starr: Well, the 20th anniversary was coming up, and I decided that it really was now or never. My personal circumstances were such that I had greater freedom. I enjoy writing. It had been some years since I’d written my book on the Supreme Court. I’ve had the blessings of a very rich professional life, including in the academy and law practice and so forth.
Then Hillary [Clinton] lost the election, and so the Clinton era seemed to pass. I was completing a book, as I did early the following year of 2017, on my Baylor experience, my tribute to Baylor University, where I was privileged to serve as president and chancellor. My view was now or never. So I decided this needs to be said, because there’s so many stories that need to be told, including the fact that we seriously considered presenting to the Little Rock grand jury the indictment of Hillary Rodham Clinton for her wrongdoing as we saw in Little Rock.
Lucas: During that investigation, people like Clinton adviser James Carville were out using the term “witch hunt.” They said it’s taking too long and that you’ve gone outside the mandate of the prosecution. We are today hearing a lot of those same criticisms from President Trump and his allies toward Robert Mueller. Do you feel some sympathy for Mueller in that sense?
Starr: Fred, I do. There are odd, almost eerie echoes when you read my book and then you say, “That’s happening right now.” In fact, some months ago, President Trump’s team anonymously said we’re just drawing a play from the playbook of the Clinton White House, attack the prosecutor and the like. There’s a huge difference, though.
From everything I have seen, the Trump team has been cooperating with the investigation. Even while the president tweets and is operating on a political level, the lawyers have been working fairly harmoniously. So lots of name-calling directed at Bob Mueller and the team. I’ve expressed concern about some of the folks around Bob Mueller, but I have confidence in Bob Mueller as a person of integrity, as a patriot.
There are a lot of parallels, I think. But here is now, to me, the very key difference. Throughout the investigation, the Clinton team sought to obstruct. They would say, “We’re cooperating, we’re cooperating.” In the meantime, in various and sundry ways throughout the investigation, there was a lack of cooperation. Most dramatically, during the Lewinsky phase of the investigation there was an effort to destroy the investigation.
Now, here is I think a very important point that was just lost on the American people 20 years ago: Attorney General Janet Reno personally authorized that investigation, based upon her review [and] professional prosecutors around her, of the facts that, and the sorry truth that, Monica Lewinsky committed perjury. And it was encouraging others to, and that the president intended to commit perjury.
That whole series of crimes against the rule of law were viewed rightly by Attorney General Reno, who, obviously, Bill Clinton had appointed, as serious enough to warrant an independent counsel investigation.
Stepman: Absolutely. Thank you so much for joining us on “The Right Side of History.” We appreciate your insight into a really dramatic moment in American history and these very complex, confusing offices. You’ve definitely enlightened our audience, so we very much appreciate it.
Starr: Thank you, Jarrett. Thank you, Fred.