With the flurry of news over the last 24 hours over President Trump’s expanding war on Robert Mueller, we’ve heard a growing chorus of voices comparing this battle to that between the Clinton White House and Independent Counsel Ken Starr during the Whitewater/Lewinsky investigations. The comparison is quite simply lazy, baseless and stupid. It is fair to note that I am a bitter critic of President Trump and during the 1990s was a strong supporter of President Clinton. So my perspective is not disinterested. But I think the facts of the matter are so elementary that the case can be argued on the merits in a very convincing way.
Let’s go through some basic facts.
Then-Attorney General Janet Reno appointed a Special Prosecutor to investigate ‘Whitewater’ in January 1994, roughly one year into the Clinton presidency. But it wasn’t Ken Starr. It was a man named Robert Fiske, a respected Republican lawyer and former US Attorney, albeit a generally apolitical one. Fiske investigated various aspects of the Whitewater scandal and other dubious controversies that rose up around it (like the death of Vince Foster) and found no wrongdoing by the Clintons. At no time was there any serious discussion or I think any discussion at all that President Clinton would fire Fiske, which legally he would have been in his powers to do. Fiske ended up finding no wrongdoing on the part of the Clintons and brought no charges against them. But of course as in any investigation there was no guarantee of that going in and it should be treated as a given that the Clintons did not welcome the probe.
Reno appointed Fiske because the Independent Counsel law of the post-Watergate era had lapsed. But Democrats, who were generally supporters of the law, reenacted it in 1994. When that happened, Reno recommended that Fiske be retained in that position by the federal judges who it now fell to to appoint an Independent Counsel. A highly partisan Republican Judge, David Sentelle, led a three judge panel which chose to replace Fiske with Ken Starr. Starr was a former Solicitor General and Federal Judge. There was a group around Clinton who from the start argued that whatever his veneer of judicial respectability, Starr was in fact a fairly dyed-in-the-wool partisan. The subsequent four years would do a lot to bear them out. It is unquestionably true that by 1998, when and especially after the Lewinsky scandal broke, the Clintonites were fiercely critical of Starr and his entire effort.
But that’s getting ahead of ourselves. Starr decided to in essence toss out the results of Fiske’s probe and start from scratch. His probe (eventually taken over by someone else in late 1998) went on for another eight years. By the time the Lewinsky scandal broke out in 1998 (leading to Clinton’s impeachment and trial in the winter of 98/99) Starr’s probe had been going on for four years. The bad acts in question were to do with President Clinton’s interactions with Starr over events which took place years after Starr’s probe even began – Clinton’s sexual encounters with Lewinsky.
But let’s back up and observe some key differences. Fiske was a moderate, apolitical Republican investigating a Democratic President. Clinton had the legal power to fire Fiske but the idea never even came up. Starr was a highly partisan Republican investigating a Democratic President. Clinton did not have the power to fire Starr. But by the time his White House went really into battle with Starr it was four years into the investigation after which Starr’s probe had become deeply interwoven with various politicized legal efforts against the Clintons. Just as noteworthy, over the course of these probes Clinton had developed a highly frosty relationship with FBI Director Louis Freeh. During the Lewinsky phase of the scandal Freeh sent FBI agents to take the President’s blood for Starr’s investigation! The idea that Clinton might fire Freeh never even came up.
Now, let’s consider the comparison. President Trump has already fired the FBI Director by his own account over the Russia probe. Comey’s politics are a matter of some debate. But he is in fact a registered Republican who has donated money to Republican candidates, though his supporters would say he is generally apolitical. Mueller is also a Republican, though I think most would agree he is apolitical in his law enforcement work. So, to review. A Democratic President investigated by an apolitical Republican and a partisan Republican. A Republican President investigated by an apolitical Republican after firing his registered Republican FBI Director. There is a certain basic asymmetry between these two sets of facts that I think is pretty clear for anyone to see.
But even that doesn’t get to the real heart of the matter.
As we’ve seen in recent weeks, Mueller’s investigation is only just getting underway. Donald Trump Jr had highly relevant email evidence sitting in his account which Mueller’s investigators apparently knew nothing about. President Trump is openly attacking Mueller, demanding to control the scope of Mueller’s probe and threatening to fire him before the probe has even gotten underway.
Given Mueller’s reputation and his at least nominal partisan affiliation, the only explanation for the President’s behavior is that he will not accept any investigation of himself or his family – which is to say that he is insisting that the operation of the law will not be permitted with respect to himself and his family. That is really the only reasonable interpretation of the day’s news. We can even go further than this and say that it is very hard to come up with any plausible interpretation of these actions other than that the President is concealing grave wrongdoing which he will not allow to be uncovered. We are far, far past the point where ego, impetuousness, inexperience or anything else is a credible alternative explanation.
But again, let’s return to the comparison. Clinton could have fired Robert Fiske and Louis Freeh – neither was ever even discussed. He and his supporters were fiercely critical of Starr – with very good reasons on the merits – more than four years into the probe when his presidency was hanging in the balance over lies about a consensual sexual encounter that happened years after the investigation began. With all this, Clinton never did anything. While his supporters clearly spoke for him in the press on the Starr front, it is worth remembering that he didn’t even say anything about it in public.
President Trump is threatening everything before the probe has even gotten started. Consciousness of guilt is really the only plausible interpretation of these decisions. Indeed, we’re well past ‘threatening’ things since Trump already fired the FBI Director over this same investigation – something that can very plausibly be seen as an impeachable offense. That is a bad act of vast magnitude which subsequent bad acts, nonsense and flurries of craziness have made it hard to maintain a focus on.
These are simply not remotely comparable sets of facts – to suggest otherwise is risible and lazy. Presidents never like prosecutors who investigate them. This is obvious and unremarkable. Republicans despised Lawrence Walsh in the 80s. Democrats villified Ken Starr in the 1990s. Neither President publicly threatened either man. Indeed, even President Nixon, who is considered by all today as the prototypical presidential malefactor, only demanded the firing of Archibald Cox well into his investigation. As much as his actions were illegitimate, he could at least point to specific and highly consequential actions and say they crossed some line. Mueller has not actually even done anything yet.
President Trump through the totality of his actions, demands and threats has made it crystal clear that he will not accept any investigation of himself, his campaign or his family. He won’t even let it start. No President, not even Nixon, ever suggested such a thing.
Let me add one final point. The major papers are leading the charge on the Trump probe, week after week and day after day, publishing critical new information. Still though there is sometimes the desire to suggest symmetries and equations where they simply do not exist. Superficial structural similarities are not substantive similarities, it can be easy to pretend that they are when discussing them with people who do not know the details. We rely on the news media to recognize these distinctions even when it requires them to grant that some things simply are not the same, even as the desire for balance might make us wish that they were.