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Home , Archibald Cox, Juanita Broaddrick, Ken Starr, Scooter Libby, Special Counsel, Victoria Toensing

AMERICAN ENTERPRISE INSTITUTE

SPECIAL COUNSELS AND THE PRESIDENCY: A CONVERSATION WITH ON THE ROLE OF THE CONSTITUTION AND THE ONGOING MUELLER INVESTIGATION

WELCOME: JOHN YOO, AEI

PRESENTATION: KEN STARR, AUTHOR, “CONTEMPT: A MEMOIR OF THE CLINTON INVESTIGATION”

PANEL DISCUSSION

PANELISTS: SAIKRISHNA PRAKASH, UNIVERSITY OF SCHOOL OF LAW; KEN STARR, AUTHOR, “CONTEMPT: A MEMOIR OF THE CLINTON INVESTIGATION”; , DIGENOVA & TOENSING

MODERATOR: JOHN YOO, AEI

2:45–4:00 PM TUESDAY, SEPTEMBER 18, 2018

EVENT PAGE: http://www.aei.org/events/special-counsels-and-the-presidency-a- conversation-with-ken-starr-on-the-role-of-the-constitution-and-the-ongoing- mueller-investigation/

TRANSCRIPT PROVIDED BY WWW.DCTMR.COM JOHN YOO: So welcome, everybody, to this panel on independent counsel. And as I promised on Facebook, we will almost certainly also talk about the Kavanaugh nomination. It’s not a joke. (Laughs.) So, my name is John Yoo. I’m a visiting scholar here and professor at Berkeley and also a fellow at the at Stanford.

And Judge Starr originally was going to give a lecture, but he actually would like to actually sit and have a conversation with the panelists, so we’re going to dispense with any kind of formal remarks. He’s going to make a — I think a short statement summarizing his book and some of the points, and then we’re going to turn right to an open discussion with the other panelists.

So let me just quickly introduce them. You have their full biographies. But, as you all know, Judge Starr has been many, many things: a judge on the DC circuit, solicitor general, law school dean — it’s all been downhill after being law school dean — university president, and an independent counsel in the Clinton Whitewater investigation.

Vicky Toensing herself has also been a and an investigator, also a deputy assistant in the Criminal Division, and I think one of the most respected commentators right now on the course of the Mueller investigation.

And then to her right is Sai Prakash, who’s a professor at the University of Virginia Law School. For those of you who don’t follow the law reviews — I hope none of you here do — Sai is actually probably the scholar I think in the country who’s most deeply thought about and written about the independent counsel law and special generally.

So we’ll go for a short while with Judge Starr going first and then some questions and answers, and then we’ll open it all up to you on this. I think this day — this is an amazing intersection, given we all have thought and written about independent counsels. We — all of us have also thought and written about the advice and consent function of the Senate in the Supreme Court, so I’m sure our discussion will take us to both topics.

But, Judge Starr, why don’t you get started?

KEN STARR: Well, thank you, and thanks, John, for organizing this and to my friends at AEI. We love the American Enterprise Institute and for the opportunities that it provides. You’re talking about very important issues in serious ways. And so thank you again, and thank you all for being here.

Let me make basically two points. One about the book. But before that, the preface to the book is: How do you investigate a president of the United States? What’s the right mechanism? I’m not talking about issuing subpoenas and drawing up indictments. What is the mechanism if the president is going to be investigated? I think we’ll have a lively conversation about this.

And has really struggled with the how. It’s accepted the proposition that, okay, we must. Now there is a very interesting conversation to be had. Really? Must we? We will talk about that, but thus far the national consensus has been, yes.

Why? Because we want honest government. We want honest government beginning at the top, and if there are serious suggestions of non-honest government, criminal activity, then we the people want to have ordered liberty, and that no one is above the law.

Everyone here could give that speech and mean it. The nation began this experiment with investigating the president and those close to the president — I should add that footnote — during the untidy administration of Ulysses S. Grant. Many of you have, I’m sure, read or at least you’re familiar with Ron Chernow’s recent book. And one of his chapters is devoted to the so-called . Big controversy.

And so how are we going to investigate a scandal in the Grant administration that might touch the president? Happily, it didn’t. But it clearly implicated his secretary of the Treasury, and Ulysses S Grant himself made the decision. Appoint a special — we call now, a special counsel. He made that decision. He believed in the idea of clean government. If somebody — if we’ve got a dirty character running around, a rotten apple, let’s ferret it out.

By the way, within a year, Gen. Grant himself fired that special , but the theory was we will go — since we’re a Republican administration under Gen. Grant, we will go to the other political party, and we’ll bring in a Democrat politician from the show me state, because the epicenter of the alleged Whiskey Ring was St. Louis, Missouri.

We’ve had other examples of presidential — or those close to the president — investigations, with the most remarkable having been Teapot Dome, done as a model of efficiency, and unusually so, by the special prosecutors being appointed with the president’s approbation by — confirmed, excuse me — by the .

And the idea is: Let’s have one of each. It’s a Republican administration. Let’s have one Democrat investigator, special counsel, and let’s have one Republican. It worked out pretty well. , the Democrat, and Owen J. Roberts, future United States Supreme Court Justice, got along just great and apparently resolved the issues fairly quickly. The criminal prosecution of one Albert Fall — get it? — the secretary of the interior. May I proceed or should I — or is it an evacuation order?

JOHN YOO: Okay. Let’s talk about Kavanaugh. (Laughter.) We’ve got enough history.

KEN STARR: The special — but this I do need to say. Watergate was to me a confirmation that the system in fact was working in that — so a special prosecutor, called a special prosecutor, is appointed. The discretion of the attorney general, he didn’t have to do it under the law, but he did.

Archibald Cox is chosen. Then the . Cox is fired. becomes the acting attorney general, is the very distinguished solicitor general, and he appoints . Now the rest is all history. The system seemed to work its way through the firing, that Saturday Night Massacre.

But a reform Congress said, no, we need a sturdier mechanism, less uncertainty, less ad hocery. And thus the independent counsel statute was passed in 1978 as part of a broader law called the of 1978.

So this is one chapter. This broad, sweeping law, seeking to make sure that we had none of the mischief that the nation had gone through during the Nixon administration. That measure lasted for 21 years.

It was said of Prohibition: It was the noble experiment. Some would question the nobility of the experiment, but it clearly was an experiment in terms of intruding into private life, the role of the states, and the like. It, of course, lasted a very short period of time — a little over a decade. The 18th Amendment was then rescinded. The noble experiment was over. Well, it took 21 years for — if it was a noble experiment, for the special prosecutor law to expire. It came through different iterations, tweaked every five years. Every five years, Congress would say, we need to improve this law. There were calls to jettison the law and to return to the tradition of the executive branch determining in its own discretion when to go outside the executive branch and to bring in a special prosecutor for this special project.

I was the last appointed independent counsel. A great honor. The Republicans fell out of love, to the extent that they had been in love, with the independent counsel statute during Judge Walsh’s investigation of -Contra.

Some you are old enough to remember the Reagan administration. Right. And if you did live through, as some of us here did, the Reagan administration, we remember ever so vividly Iran-Contra and Judge Walsh’s investigation — wildly controversial.

I saw Victoria nodding over here. I wanted to make sure she wasn’t nodding asleep. I’m nearly through. Then the Democrats fell out of love with the independent counsel statute by virtue of the . Even Whitewater itself was a little bit problematic, but the die was cast with Lewinsky. And so in 1999, at long last, the experiment came to an end that began in 1978.

Looking ahead to the demise of the statute, put in place regulations that stand to this day. They may have been tweaked. Sai and others will know about it. But the essential structure, the key point is that the attorney general or the acting attorney general, in this instance of the Mueller investigation, has the appointing authority under regulation.

So it’s not just an ad hoc decision. It’s a judgment on the fourth floor or the fifth floor of the Justice Department, guided by and shaped by those regulations. And that is our current system. Well, how’s that working? We’ll talk about that.

Point two. Believe it or not, that was point one. The book. But now, I’m going to be very brief. I was moved to write the book by virtue of my newfound freedom when — and we’ve got some Baylor Bears here — I was dismissed as the president of Baylor. And then I said, I’m not going to continue working here as much as I love the institution.

So I resigned. And I was not fired for cause, as — hey, that’s not a laugh line. (Laughter.) That goes to integrity.

JOHN YOO: But that’s what the statute says. These are independent counsel junkies. That’s what the statute says.

KEN STARR: That’s right. Just cause. The attorney general. How I begged that I would get fired, but it never happened as independent counsel. No, I love Baylor to this day.

So I resigned as chancellor. And I said, item one, you know, play with the grandchildren a little bit more. But secondly, I really want to write my book about Baylor because I so love telling the Baylor story and I was no longer telling it.

So as I was suffering from some sort of opioid-like withdrawal — I loved the place. Had fallen — had the zeal of the newly converted, so I wrote a book. And the book was coming to an end in November of 2016. It wrote very quickly.

And then Hillary lost the election. And people for years had been saying, you must write your own story. It’s your story as well. Bill wrote his “In My Life” and said some not flattering things about you. Have you no answer? Yes, I do, and yes, I can.

So that was then the occasion that gave rise to the book when I thought that the historical record needed to be from my perspective completed — the record including the fact that we found significant evidence of criminality on the part of both and in the phase of the investigation.

I tell that whole story. How we struggled with “Do we have the evidence to indict?” We felt that Bill Clinton committed in the Arkansas phase of the investigation. And then of course, I tell that part of the story, but from my perspective. And also in a deep and personal way of the Monica Lewinsky phase. How we connected the Lewinsky phase back to Arkansas and the other far-flung nature of our investigation, which I inherited from a very able appointed by the attorney general special counsel, Bob Fisk.

Because the person who pointed us to Monica Lewinsky and says, “I am being encouraged to commit perjury by a woman who I’ve come to know here at , who has this relationship with the president, and who has herself filed a perjurious affidavit in this civil rights case, this sexual harassment case.”

And you know who I am, so I tell the story. Who are you? I’m , executive assistant to the late Vincent Foster Jr., who was an important witness for us in the death investigation of . That’s how it began. If you choose to read the book, you’ll see how it ended. But I guess, they already know.

But the other thing I wanted to say about that is that because I was encouraged for this to be a memoir, so I talked about the family, the pressures on the family, all members of the family, including Alice.

Would you stand up please and be recognized? Because she watched Geraldo before Geraldo — (Applause) — went over to and has a very changed persona.

JOHN YOO: He used to be Jerry Rivers.

KEN STARR: He did? Oh well, you learn something — when you talk to John Yoo, you’re going to learn something.

So Alice really bore such a brunt of that because one of the things I encourage our colleagues to do when the maelstrom really began is shield your eyes from all of the coverage. Do your best to discipline yourself so that you seal it out. Friends may talk to you or call you up — those pre-internet days — but you don’t have to read or whatever.

But I don’t mean to knock the Washington Post. Because one of the things that sort of surprised people — they’d come to me and said, “I had no idea that , not editorially, had some reporters on the beat. They were — you call them truth seekers.” Yes, they did. The Washington Post had truth seekers on the staff. Yes, it did.

Now, this is 20 years ago. NBC News, Lisa Myers, truth seeker. I could keep going on and on with the people in the so-called mainstream media who just said, “I just want to know the truth.” Bob Franken of CNN, when CNN was really early on. Bob Franken, now retired, was a truth seeker.

So I tell all this in the book. But my bottom line is, don’t go back to the independent counsel statute.

JOHN YOO: All right. Thanks, Judge.

Victoria?

VICTORIA TOENSING: When I did Geraldo a lot during the OJ trial, we were very much in sync. When I did Geraldo a lot during the independent counsel, we were not very much in sync. It was a whole different Geraldo. I agree with you.

I want to talk today about something very timely about the special counsel, and that is: Should President Trump agree to be interviewed by Bob Mueller?

I don’t think it’ll surprise anybody who knows me to say a resounding no. And the reasons for my no are several, and they’re rooted in constitutional and policy issues, as well as the .

First, let’s set the stage. A sitting president cannot be indicted. And that determination is based on policy and the Constitution and written in two OLC opinions written two decades apart: one by the Nixon Justice Department, the other by the Clinton Justice Department. And significantly, when the Clinton DOJ reviewed the Nixon OLC opinion and intervening court opinions, which is why they wrote it, they concluded as follows: “Our view remains that a sitting president is constitutionally immune from indictment and criminal prosecution.”

So all these Democratic pundits, and specifically most recently the US Democratic senators, shame on them for criticizing for agreeing with those OLC decisions. Because they’re just misleading the public about what is an accepted bipartisan position of DOJ.

Let me just discuss these OLC opinions. I have them with me, if anybody wants to read them afterward. I feel carrying things around, you sort of get it by osmosis.

But the OLC opinions dealt with policy. They said — they looked at like, you know, how in the heck can modern presidency, they’re going to be so distracted. And here’s a great quote that I love from it. “The spectacle of an indicted president still trying to serve as the chief executive boggles the mind.” And indeed it does, if you’ve just seen the investigation over the last year and a half.

But the overriding concern was really constitutional — that a criminal process would undo a due election, a valid election. Would shift the — here’s their quote — “an awesome power to unelect persons — unelected persons lacking any constitutional role.” The president is elected by the whole country, as we all know, and it would be incongruous, says OLC, to bring him down by one prosecutor and a jury of 12, just sort of selected by chance off the street.

Additionally, the OLC observed that, you know, the president, he’s head of the executive branch. He controls the evidence with the executive privilege. He’s superior to whoever would be indicting him, and he has the power. He cannot at the same time be a criminal defendant. So as we all know, Mueller is appointed by the executive. Get into that in a minute. But he must comply with the rules, as such.

So important issues flow from that threshold maxim. One is the separation of powers. Mueller cannot utilize the awesome power of the executive to get evidence to give to the legislative branch for impeachment when that’s a purely legislative function.

Know Ken, that your statute had you do that. And in fact, the report went over to Congress, and they used it. But that provision was never challenged. And I would have. I would have. I would have challenged it.

Another issue is abuse of the . US Attorneys Manual says quite plainly the grand jury has but two functions: to return an indictment or no true bill. So how can Bob Mueller use a grand jury for something other than an indictment or getting a no true bill?

I want to turn now to the questions that Mueller has proffered. They were all leaked out. They raise constitutional and privileged issues too.

Here’s what the leaked questions show. Mueller wants to ask Trump why he fired Comey and Gen. Flynn. The Constitution says all the executive power is vested in the president. The president can fire somebody for many reasons, one reason, or no reason whatsoever. And if President Trump agrees to answer even one question about why he fired either of these men, or any other Article 2 function, he would diminish the authority of the presidency, and besides waiving executive privilege.

Moreover, if firing Comey is an , wrote a scathing memo recommending that firing. So Rod Rosenstein is a co-conspirator. At the very least he’s a witness.

Now, wait a minute, I have never heard of somebody supervising an investigation in which that person is at the least a witness and maybe a co-conspirator of what’s being investigated. That’s for another panel. I’ll get back to my subject.

In addition to constitutional executive privilege issues, there’s also case law governing the issue of when the president has to provide evidence. The courts like to say, quote, “The president is not readily available to give evidence.” It’s a nice little phrase. I like it. It’s a judicial policy much like those OLC opinions. It’s taking into account the demands of the presidency.

The case involves a subpoena to the Clinton in — for all us old-timers — the investigation of Secretary of Agriculture Michael Espy. We all remember that.

By the way, independent counsel Don Smaltz, which must have been before you, because you were the last one. You were concurrent. By the way, my husband, Joseph diGenova, was an independent counsel, and he never indicted anybody and apologized to them in the end.

But after counsel Don — independent counsel Don Smaltz spent $20 million, Espy was acquitted in a few hours of the all 30 counts. Espy was charged with taking gifts, and Smaltz couldn’t get a quid pro quo there for any official acts for the gifts.

But the Clinton White House had also done a simultaneous investigation, while the independent counsel was doing so. So of course, when trial pending, the independent counsel wants — what? — the fruits of the White House labors. So of course they subpoena the White House, and of course the White House says executive privilege. The fight was on, and it went up to the Court of Appeals in DC.

And Espy court remanded, saying, there must be a, quote, “demonstrated, specific need for evidence in a pending criminal trial.” That standard is defined as evidence that is material to the matter and not available elsewhere with due diligence.

The language and policy tracks the Nixon tapes case, which dealt with White House tapes to be turned over because there was a pending criminal trial. The case had nothing to do with the president being interviewed or the court saying the president’s got to give up the evidence, as some people on CNN and some other places opine.

The Nixon case held that the tapes had to be turned over in camera and only those relevant and material should be produced. The Supreme Court language in this area is — this is why I have all this papers in front of me, because I have to get to the — I cannot memorize all these quotes. The Supreme Court said, quote, “The trial court has a heavy responsibility to see that presidential conversations which are neither relevant nor admissible are accorded the high degree of respect due the president of the United States.”

So courts are deferential to the presidency for acquiring evidence. For all the journalists who cavil that the president is not above the law, well they are too. That’s the same kind of higher standard provided journalists when they were being subpoenaed about their stories. It’s the same kind of standard that is given for us when we are being subpoenaed about our representation. So let’s return to what we’re talking about here — the present counsel situation.

Last I checked, there was no criminal trial. In fact, Rosenstein won’t even reveal whether he had in his brain even the concept of some kind of criminal statute when he appointed Mueller. And the latest word from the former FBI Lisa Page is that, at the time Mueller was appointed, there was no evidence of collusion, much less a crime. And Mueller is not revealing whether he has uncovered a crime, other than babbling about obstruction.

And this is at issue right now, between Jay and Rudy and the special counsel. Jay and Rudy are saying, “Tell us what you’re talking about. Tell us what you want to — you know, what are you pursuing?”

So Mueller is pushing to obtain evidence from the president when there is no trial and no crime. How can the president’s lawyers even evaluate if they want to oppose the subpoena? How can they go argue to the court, well, listen, this isn’t material to the matter at issue? Because they don’t even have it.

Moreover, what factual information under the Espy test could the president possibly provide that Don McGahn has not already provided in his three special counsel interviews for a total of — count them — 30 hours? Therefore, the Espy requirement that the evidence cannot be acquired elsewhere is not fulfilled.

Mueller has one more trick up his sleeve, though. And that is, the issues — the questions that were leaked. Unbelievably — believably, some of those leaked sample questions ask what the president thought — what the president thought about various situations, such as Comey’s January briefing of him when he was president-elect and Comey’s testimony before the House Intel Committee.

I was raised Catholic. I’m not surprised by the concept of going to confession and saying, “I had impure thoughts,” and then getting five Hail Marys. But what does the president’s thoughts have to do with his carrying out his Article 2 functions? When did we criminalize thoughts? In sum, the president should not answer one question about any act since he became president. Not a one.

The only deal the president should accept is that after first being provided a written description of the matter at issue about any pre-presidential conduct, he should respond, but only if the evidence sought fulfills the Espy test. That’s it.

JOHN YOO: Thank you, Vicky. I notice, I think you and Judge Starr actually might disagree on a few matters, based on the positions —

VICTORIA TOENSING: Did he shake his head no when I was —

JOHN YOO: No, no. But, Sai, why don’t you go ahead, and then I’ll ask you all a few questions.

SAIKRISHNA PRAKASH: Well, it’s a pleasure being here. Thanks so much for having this.

I had the honor of meeting Judge Starr about 20 years ago at a conference at the University of Minnesota. It was a conference on executive privilege, and it was my first academic conference. I was bright-eyed and bushy-tailed. And I got there, and I saw a huge auditorium with maybe — I don’t know — 2,000 people. And I thought, this is what a normal academic conference is like. (Laughter.) This is the sort of crowd I can expect for all these academic conferences.

It was a very interesting panel on executive privilege. It was about United States v. Nixon, the Nixon tapes case, and Judge Starr was clearly the star attraction, as he is today.

I’m going to try to get out of the way here. I do have three points that I’d like to make. First, actually before I make them, though, is the judge didn’t show you his book. And part of the reason we are here is to entice you to buy the book. You know, I was thinking it should be called “The Ken : Part Two,” or maybe, you know, something like “Ken Starr Strikes Back.”

I’ve read parts of it, and it’s quite good. It’s very well written. It’s very interesting. It’s very gripping. So I do highly recommend it to each and every one of you. And I understand there is little stand outside the door.

So my three points have to do with the constitutionality of these sorts of investigations. My first point is that prosecution is an executive function. It was so in England, where Blackstone said the crown is the proper prosecutor of all criminal offences. It was so in America, right? Alexander Hamilton says, the president is the constitutional executor of the law. Why does he say that? Because the president has the executive power. It’s the power to execute the law. That’s what it is principally.

And not surprisingly, early presidents controlled prosecution. We don’t do this anymore. Maybe there are good reasons why we don’t, but Washington would direct prosecutions as president. He would tell prosecutors to bring prosecutions. He would tell them to stop prosecutions.

John Adams did the exact same thing. He would read the newspaper every day, the opposition press, find things he thought were seditious, and then write to his prosecutors and say, prosecute these people.

Now, a lot of us don’t like the Sedition Act. I am not encouraging President Trump to do this, but it was entirely constitutional. The complaints that were made were about the act, not presidential direction, because Washington had already done this.

And finally, did the same thing. John has a wonderful article on the Burr Trial. The Burr Trial of, you know — by of Aaron Burr. And John expertly shows how Thomas Jefferson directed the US Attorney George Hay, intimately. Almost on a weekly basis Thomas Jefferson was telling the attorney what to do.

So this is entirely constitutional for the president to direct prosecution. It’s part of his power, and he has to decide whether to do it. I think we now have a custom of presidents not doing this, and that’s probably not a bad idea because presidents don’t know what’s going in all these trials across the country. But it’s entirely constitutional because it is the executive power to control law execution and to control those who are executing the law, including US prosecutors.

There’s nothing in any statute that says any of this. Each of these presidents understood that they had constitutional power to do it.

My second point has to do with the independent counsel statute that Judge Starr referenced earlier. That statute, which came out of the Watergate reforms of 1978, basically authorized judges to appoint an independent prosecutor.

And the idea was we don’t want to have a special prosecutor fired again, so we are going to create a statute that precludes this from happening. We are going to have judges appoint this person. Judge Starr was appointed by judges. We’re going to have judges appoint this person, and then a person can only be removed for cause.

And Ted Olson brought a case challenging the constitutionality of the independent counsel statute. And, as many of you know, it went up to Supreme Court and the Court in a seven to one decision called Morrison v. Olson — decided that the independent counsel statute was constitutional.

And it was a very long opinion. It was written by Rehnquist with the dissent by Justice Scalia. But the Court basically said, you know, we have prosecution as an executive function, but we don’t see — we don’t see what the big deal is — I think that’s the way I’d put it in legal technical terms — with taking this one little bit of executive authority away from the president. And then we also don’t think that Alexia Morrison, the independent counsel, is a non-inferior officer.

As you may know, the Constitution establishes this appointments clause, which says appointments have to be made by and with the advice and consent of the Senate. There is an exception to that clause, which says that Congress by law may vest the appointment of inferior officers with the presidents, the courts of law, or the heads of departments. And the court said, Alexia Morrison seems like an inferior officer to us.

Ted Olson, who was the defendant in that case, said, no, she’s not, because she has an unlimited budget. She can investigate quite a bit. She doesn’t have a term on her appointment, and she has for-cause protection, meaning that she cannot be removed unless she does something terribly wrong.

And the court said that was constitutional, in a seven to one opinion. Justice Scalia dissenting, and he — it’s a very famous dissent. Perhaps is his most famous dissent of all, and he — famous for all of his dissents. He was in a lot of them. And he basically said the executive power belongs to the president in toto. Congress cannot take it away, and it’s very odd to think that the attorney general can control the independent counsel through this for-cause protection when the for-cause protection is designed to insulate the independent counsel, right? He said it’s like treating manacles as an engine of locomotion, right? You’re trying to restrain the attorney general with this provision, not trying to give him authority over the independent counsel.

And so he lost his case, seven to one, but I think the judgment of history is that he won it. Because after Judge Starr’s investigation, a lot of Democrats came to see the wisdom of his opinion. And as Judge Starr noted, the Democrats and the Republicans have allowed the law to lapse.

Inexplicably to me, Janet Reno I think in many ways reconstituted the independent counsel under the special counsel regulations under the Department of Justice. It’s not by statute now; it’s by regulations, but I don’t really know if there is much of a difference between the two.

The special counsel also has for-cause protection. The special counsel is not subject to the day-to-day control of the attorney general. The regulations talk about the special counsel being independent. But when you hear about special counsels and independent counsels — Judge Starr was an independent counsel who was very special. And is a special counsel who is very independent. Don’t be fooled. (Laughter.) Don’t be fooled to thinking that, you know, Robert Rosenstein is peering over his shoulder and supervising him in some direct way. He’s not, right? That’s not what’s going on.

The regulations aren’t designed to allow that, and Robert Rosenstein doesn’t want to do that. In part because I think he may have evidence about whether the president committed this crime of obstruction, right? That’s why he has handed it off to Robert Mueller, I believe.

So it’s called the special counsel, but it’s an independent counsel, right? So when you see the words, you know — that Robert Mueller may be removed for cause — you should understand that that just means no cause. Because no one is ever removed for cause. And we think that people who have this protection never do anything wrong. That’s just silly, right?

The president and the people who have the authority to remove people for cause just don’t use the authority because they understand the scheme is designed to prevent them from removing people, right? For-cause protection is very similar to good behavior protection that federal judges have, and they never get removed, right? They have to be caught accepting bribes or something, right?

There was the spectacle of a federal judge in jail, and he was still in office collecting a salary. The Senate and the House had to impeach him and remove him for him to stop doing that. But my point is this for-cause protection doesn’t really work as you might think. No one ever gets removed for cause. And it’s not because they are all not doing things that might be worthy of it.

So I don’t really believe that the independent — the special counsel regulations are really that different than the statute. They come from the attorney general rather than Congress, and so some have people suggested they can just undo the regulations. The attorney general can just, I guess, post something to the Federal Register saying we are revoking these regulations. And the attorney general, the acting attorney general in this case, can just say there is cause here and then try to fire Mueller.

But what’s going to happen as soon as they do that? What’s going to happen? If it’s possible for the president of the United States to commit obstruction of justice for firing , of course it’s possible for Robert Rosenstein to be guilty of obstruction of justice for removing this reg and then firing Robert Mueller.

So this idea that you’re going to do this in the context of a situation where you might be charged with obstruction of justice makes it even more, you know, less likely you are going to supervise this person because you’re going to be accused of committing obstruction of justice.

It doesn’t have to — it doesn’t have to actually be true that you have committed obstruction of justice. There just has to be some colorable claim, and that will affect your willingness to supervise Robert Mueller and/or to fire him and/or to remove this regulation.

So I don’t really think that — Judge Starr, I think, you know, I respectfully disagree. I don’t really think there is much difference between the statute and the regulation. I think they are both independent.

We have to think about the peculiar context. Alexia Morrison was investigating Ted Olson, who was an official in the Department of Justice. He went on to become solicitor general of the United States. In that context Alexia Morrison was deemed by the Supreme Court to be an inferior officer. But Robert Mueller is investigating the president of the United States. Do we really think that he is inferior to anybody?

He is standing toe to toe to the president. In this particular context, if perhaps no other, it’s just silly to say that he’s an inferior officer. There are people who are the assistant secretary of procurement and the assistant secretary of diversity, the assistant secretary of personal management in departments that go to the Senate to get confirmed. This person hasn’t been confirmed by the Senate. His office is far more powerful than the ones that routinely go through a Senate confirmation and presidential nomination.

There are reforms that you could do. One is just to say, this is Congress’ job, right? Congress can have its investigation of the president and decide what to do with this president, if he colluded with the Russians or he obstructed justice. That’s one solution.

I think another solution is if this is a good idea to have a special counsel investigate wrongdoing by the president, I think what you ought to be doing is you ought to say that the entire, you know, Washington, DC, government ought to be subject to special counsel, right? Who is just a permanent official that goes through Senate advise and consent and they can investigate members of Congress and departmental secretaries? Because special counsels and independent counsels, whatever you call them, have a very perverse incentive. Not all of them are trying to nail a scalp to the wall, but a lot of them are.

And once you recognize that — and Justice Scalia talks about this expertly in Morrison v. Olson. Once you recognized that, you will see that they have different incentives than do normal US attorneys. The normal US attorney has a jurisdiction of hundreds of thousands of people. They have to make choices about what to prosecute and what to let go.

The special prosecutor, the independent counsel, whatever you want to call him or her, just doesn’t have to make that choice. So if members of Congress can feel this pain, and if departmental secretaries can, then at least we are all playing by some sort of rules, right? But otherwise, all that we have is a situation where basically the executive branch is subject to these rules.

What is mind-boggling to me is that, you know, Janet Reno put these regulations in place. And it’s a little mind-boggling that, you know, Robert Rosenstein decided to invoke them. Thank you.

JOHN YOO: Very good. I was going to invoke for cause and stop you in a few seconds. (Laughter.) So I — before we turn to independent counsel, I do want to ask one set of questions about the Kavanaugh controversy and the Senate’s decision to have a hearing on Monday, where both Judge Kavanaugh and Dr. Ford are allegedly going to testify. Each of you are expert in different aspects of this, so I’ll just ask each of you one question, and then we can turn back to the independent counsel.

First off, for Judge Starr: Judge Kavanaugh worked for you for many years directly as a trusted aid in the Whitewater investigation. That’s the subject of your book. Do you believe the charges that are being made against him?

For Vicky: You are both an expert as a prosecutor and as a staffer on Capitol Hill. What should the Senate do now? What procedures should the Senate follow to make sure there is a fair and full airing of these issues?

And then Sai, what standard should senators apply to all this when they exercise their advice and consent function?

Judge?

KEN STARR: I have great confidence in the integrity of Brett Kavanagh. Character flows out of daily actions and interactions. When one is working alongside a person, as I had the privilege of doing with Brett for a number of years in the independent counsel’s office, also in private law practice, and then watching with admiration his public career, his service in the executive branch and his very distinguished services as a judge, that record of several decades, coupled with the outpouring of support for his integrity from those who knew him in these long ago days in high school, persuades me that I believe Brett Kavanagh. And Brett Kavanaugh has been absolutely firm in saying it did not happen.

Not that it may have been some episode in her life which was very traumatic and was horrible and dignity denied, and the like, but I did not do it. So I believe Brett Kavanaugh.

JOHN YOO: I just can’t help but ask. Do you find that senators are being hypocritical in their approach to Kavanaugh versus their approach to the matters that you were investigating?

KEN STARR: Hypocrisy in Washington, DC?

JOHN YOO: On both sides. Republicans and Democrats. They seem to have flipped positions.

KEN STARR: There is no question that we can all be hypocritical in daily life. I think a very powerful example of the allegations of hypocrisy was made as recently as last evening by , who claims to this day that she was forcibly raped by William Jefferson Clinton when he was the attorney general of Arkansas and a candidate for the governor of the state. A pretty serious charge.

And seeing her comment about Sen. Diane Feinstein’s response in the ’90s to those allegations and contrasting those to her reaction to — just there it is. I would just invoke the example so recently within the last 24 hours of Juanita Broaddrick’s public statements.

I have — this goes beyond the question, so cut me off, for cause or otherwise, but I have expressed now several times great concern with the process. I love ’s quote, “The history of liberty is largely the history of procedure.” Procedure counts.

Now, we are not in a court of law. It’s a political process, and we all understand that. But there is orderly procedure and the very fact — and I don’t need to rehearse all the facts before this audience — that the senator would not act on the these then anonymous allegations and bring it forward for the consideration of the committee, including during executive session when it was reviewing FBI files, really concerns me.

And let me have a footnote about FBI files. I’ve had the heavy responsibility of reviewing FBI files. FBI files contain the vilest kinds of information because the FBI special agent, in conducting a background investigation — and these fan out across the country or whatever is appropriate — they will faithfully and I think professionally take down whatever the person tells them, and they can seek privacy and confidentiality. You can spill out all manner of charges against someone with the FBI special agent. Now, it is, as we know, a crime to lie to the federal agents — elements of proof and so forth.

My point is FBI investigations tend to be very thorough, very comprehensive. And to have six FBI files, it is no surprise to me that the committee in this age of transparency went into an executive session, because the material in those files should not be made known to the general public.

Apparently, my understanding is, Sen. Feinstein did not even attend the hearing, nor that occasion when it certainly would have been proper to bring that information forward. Did she bring that information forward, even though, again, she did not attend the meeting or whatever?

So I think the brokenness of the process is something that has to be taken into account. The lateness — call it dilatory tactics. Why would you sit on this if you then found it so credible that now the entire nation’s business has virtually come to an end?

So it does raise very serious questions in terms of the fairness, ultimately to Brett Kavanaugh and his family, as well as obviously to the accuser, but also to the Supreme Court of the United States. This process had been set forth at the beginning of the summer with Justice Kennedy in a very timely manner saying, “I am retiring.” The president made his decision, which I think was a wise and terrific decision on the merits, chooses Judge Kavanaugh. And this process has now been set in literally for several months. And all of the sudden now, we will not proceed on the basis that had been laid out so clearly and reasonably beforehand.

JOHN YOO: A perfect segue to Vicky.

VICTORIA TOENSING: I’ve been thrown the ball. I just want to say something about someone you mentioned, Juanita Broaddrick and Lisa Myers, one of the truth seekers. Lisa was taken off the air for several months after she aired her story about Juanita Broaddrick. And it’s one of the reasons why Lisa is playing golf in now instead of still with NBC. There were just many of those that occurred. One of mine being one of the latest in a Benghazi interview.

What should the Senate do? I conducted Senate hearings as chief counsel for the Senate Intelligence Committee and again as chief investigator for the investigation of the — (inaudible) — Teamsters, so I have been there, done that. It’s very difficult for this because we don’t know when it occurred. She doesn’t remember where it occurred. This vague accusation of 36 years ago — how does anyone defend himself against that?

So the question is: How does the Senate handle it? My recommendation to Chuck Grassley is, get a person in there who is a veteran prosecutor, veteran lawyer, veteran trial lawyer, and have that person question her, rather than put any of these political senators in the position of having to decide whether to be too nice or too mean or whatever the senator has to do. Take it out of the political arena and put it into a more of a litigation arena, because she has to be questioned. And the Democrats are saying, well, you’re in trouble if you are really mean to her. It’ll be Anita Hill all over again. You have got to be able to avoid that kind of situation.

SAIKRISHNA PRAKASH: Well, you know, I think the way to think about this is just an entirely political process, right? So if you recall, there were some — I think some drunk driving conviction of George — sorry, George W. Bush that came out in the last week of the campaign between him and Al Gore. And, you know, they were obviously sitting on that. It’s not something they found out at the end, but they thought this might throw the election one way or another.

VICTORIA TOENSING: It did.

SAIKRISHNA PRAKASH: Well, you know. I don’t know. Right. I mean, this is just something similar, or I guess they could say could conceivably be something similar, right?

I don’t know for certain what’s going on here, but I do know this happened to Justice Thomas as well. And if you believe that the court is a political institution, you’re going to use political tactics to promote your candidates and obstruct the other party’s candidates.

So I’m — I’m not — I guess, I am not that surprised that this has happened because it’s happened to my mind once before. And it will happen again. I don’t know what you can do about this. I think some Republicans want to think of the Court as just something if you have enough credentials you should just be on it. But that’s clearly not how everybody thinks about the Court, right? It’s not a situation where if you have sterling resume you should be presumptively on the Court, if the president nominates you. And if people don’t think that, they’re not going to play by those rules when someone like Brett Kavanaugh is nominated.

So this to me is, you know — the particular contours of the allegation aren’t predictable, but the idea that you would spring something on a candidate at the last second to delay the vote, whether or not that happened here, I don’t think that’s surprising.

JOHN YOO: OK, let’s turn — we have about 10 minutes before I ask for questions from the audience. Why don’t we turn back to the independent counsel question? So first off, what do you mean the plea bargain by at the end of last week? Should President Trump be worried? What assistance could Manafort be providing independent counsel? Should President Trump fire — consider firing Mueller, as he’s allegedly considering firing the attorney general right after the midterm elections, because of the course of the investigation?

KEN STARR: I want to defer to Victoria, but before Vicky responds, because she’s certainly more knowledgeable than I, given her vast experience — but a couple of observations.

One, as a prosecutor you want the defendant, the target, the subject to cooperate with you. And you want that target, that subject, that former defendant to be truthful with you. I thought the wording of the agreement between Manafort and the special counsel’s office used exactly the right — you’re to cooperate fully and truthfully.

It is you now — and we used to say during the prosecution — I talk about this in the book — we would tell potential cooperating witnesses or those who had in fact entered a guilty plea — and all very guilty pleas were righteous. I know there are those — and we may hear it from Vicky and others — oh, no, a lot of these pleas that Bob Mueller has gotten are not righteous. I’m not going to judge that, but what I do know is every one of our guilty pleas was completely righteous, based on actual facts and actual crimes.

But we were very eager to get cooperation. And so for Mueller to have achieved this early on — he had the hammer of the second trial with great exposure — just gets us toward the end of the investigation much more quickly than otherwise.

Next. As far as we know, other than the June 2016 meeting in Trump Tower — we’ve seen public reports about Paul Manafort’s participation, which seemed minor, modest, and so forth. And the meeting itself seems to me, from what we know, to amount to virtually nothing — certainly nothing criminal, nothing suggesting collusion. And collusion as a crime is a very interesting topic in and of itself. So I think — I’m seeing it as let’s get to the end of this as soon as possible.

And in terms of the power of what Paul Manafort may be able to say, I would think that one cooperating witness named Rick Gates, who has apparently already been cooperating. Sentencing has been postponed. That suggests that the cooperation is in fact real and continuing. That’s a sign of health in the relationship. If, when you see the sentencing date has been set, that means the special counsel is either satisfied with the witness or is about to wash his hands with the witness. One of the two.

You’ll never know until it comes with “Did the special counsel move for downward departure?” I think that with the indictments of the Russians — final thing, I’m going on too long. With the indictment of the 11 Russians and the two Russian organizations — and those indictments read very powerfully about Russian interference and lavishly funded Russian interference for the investigation — what does indictments do not suggest one word of is collusion, conspiracy with the Trump organization and the Trump campaign.

VICTORIA TOENSING: In fact, Rod Rosenstein made that very clear when he announced the latest indictment.

It is a very strange — I mean, as a prosecutor you really — when I was at Justice Department, it is rare when we indicted somebody who we knew we would never get. We did it only with terrorism, which was under me, and we did that because then that sort of precluded the person’s ability to travel in various places because we could put out a worldwide warrant for them.

It’s a very bizarre case, and we won’t get bogged down into the legalities, but Sai and I have been looking at the briefs files. Because there is one Russian company that’s challenging. It’s named Concorde — been hardly ever reported, and they are challenging this inferior-superior officer issue. It is very interesting reading.

The cooperation by Manafort, like I don’t know what he would know that what’s his name — Gates doesn’t know. And Gates has been cooperating for months. So I don’t know if Paul Manafort knows anything more about the president. But who was Manafort working with? The Podesta Group.

Podesta in the crosshairs? I don’t know. It’s rare that a Democrat ever gets looked at by the Mueller team, but that’s the extra information that Manafort would have that Gates might not even have.

But I want to bring up just a legal issue for us mull. And John, you and I have talked about this before, and I want us to pursue it at some point. What is this? Perjury is supposed to be lying about a material fact. If Papadope, as I call him, had told the truth, it would not have been — if he had said, yeah, I met with the Russians on the days that he did, it wouldn’t have been a crime.

Mike Flynn, Gen. Flynn could have conversations with the Russian ambassador. There was nothing wrong with that. And they already had the transcript of what he said, so why was that? I say it was a pretense that they came to interview him and I think — because they knew what he had said. And if something was wrong, they could have indicted him on that.

So my query is: If the FBI comes to me and says, what did you have for breakfast? And I don’t want to admit that it was a glazed doughnut, and I say yogurt. To me these questioning about something that’s legal if you tell the truth, I don’t know how that gets you to materiality.

And John and I have talked about it briefly. I don’t think there is any Supreme Court case on it. And I’ve talked about it with another client who would know — who they looked at with during his case, because they looked at it. Everyone knows about Scooter and that we got him a pardon. Yay. Much deserved.

But this is really, I think, a very important issue. If the FBI comes and talks to you about something that is not a crime and you don’t tell the truth about it, is that material?

KEN STARR: Great question.

JOHN YOO: Vicky, just to follow up, what are we supposed to make of President Trump’s decision to declassify the FISA warrant application for Carter Page and then all these texts at the Justice Department coming right after the Manafort plea? Do you think they’re —

VICTORIA TOENSING: No, that wasn’t — that wasn’t the reason for the texts —

JOHN YOO: They are not at all connected or what —

VICTORIA TOENSING: No. There is no connection there whatsoever. They were — this has been in the works for quite a while, and there are those of us who have been pounding that this should be done.

It’s frightening. It is frightening what happened to Carte Page, a US citizen who, by the way, cooperated with the federal government. He was an asset to the FBI in indicting a Russian who had approached him and asked for intelligence information.

He participated and helped the FBI get the indictment. And according to my knowledge, and I’m waiting to see that document, according to what I’m told — my sources who should know — the FBI made it look like Carter Page was in cahoots with the Russians back two years ago. And it was on that kind of basis that they proceeded in going after him.

So I think we really need to look at this. This is frightening. 1978, the year of the independent counsel statute, that was also the year of FISA. And I worked on it a lot in its infancy as chief counsel for the Senate Intelligence Committee for Goldwater.

This is — and I was always — listen, you know, we need these powers, nobody would really hurt the — I mean, I am appalled at the thought of what I think occurred here. And that is going after — they went after Carter after he was named in March of 2016 on the presidential committee. That’s when they started going after him. Not until he was assigned — because I happen to represent people, I know all of these — the underlying facts. In March he was appointed for the foreign policy team, and it was within a few weeks that they started going after him and looking at his background. And the Papadope thing is the same thing. It’s very frightening that this was a setup.

JOHN YOO: Let me ask the question Sai ended with, which in a way interestingly suggests that Mueller is equally if not more independent than you were. So let me ask, and then I’ll call for questions from the audience.

Can the president fire Mueller? Should he fire Mueller? Were you ever worried about being fired?

KEN STARR: At times I would have welcomed it. (Laughter.) And the statute did give — and this is one of the many oddities of the independent counsel statute. So the attorney general could fire for cause. That was not done, even though there were all kinds of accusations and the attorney general— and I recount this in the book — launched an investigation, which I said you do not have the authority to do that. You can fire me, but you can’t send folks in to rummage through our files, interview our people, and so forth. We ended up having a bit of a standoff on that. But it does go to show the tensions when this executive branch function is being carried out by this independent officer.

I do want to make one comment, if I may, because I think this is important in terms of the conversation about impeachment. One of the mischievous things about the independent counsel statute is that it created this road toward impeachment, and it created a dynamic toward impeachment. Not so with the special counsel regulations.

What do I mean? A specific provision of the statute — and this is what we were being obedient to in filing the referral that the House of Representatives required. The independent counsel shall refer to the House of Representatives when — and here is the rather low threshold — substantial and credible information has come to the independent counsel that an impeachable offence — not defined — may have been committed. It’s a dragnet kind of provision. So you can see that before we got to the question of can the president be indicted as a constitutional matter, we were given a statutory route directly to the House of Representatives.

That mischievous provision is a low trigger for “Here it is.” The public now knows that there’s substantial and credible information that an impeachable offense may have been committed — very broad, very ambiguous is, needless to say, no longer part of the special counsel provisions.

The other thing is there is a check and a balance here under the present domain. And that is that before any — I’m going to paraphrase — major decision is made by the special counsel, the special counsel must consult with the attorney general.

I did not have that. There were checks and balances in place, some of which we put in place, but that is an assurance — whether some are assured by it or not — but there is an assurance that a Bob Mueller is not simply out on roving commission, expedition.

VICTORIA TOENSING: But it doesn’t say that they can be overruled, and that’s the point about the inferior-superior officer.

KEN STARR: Yes. That’s true.

VICTORIA TOENSING: It’s like Rod Rosenstein can’t say, “No, I’m directing you not to do that.” “Consult” is really iffy.

JOHN YOO: What if Mueller decides — the regulation says — doesn’t say he can’t refer something to the House for impeachment. What if Mueller decides to do that? Is there anything that could stop him?

VICTORIA TOENSING: No, I say you can’t — well, regarding the president?

JOHN YOO: Yes.

VICTORIA TOENSING: I say you can’t send anything to the House — the legislative function. You can’t use the executive branch function to get stuff to give to the legislature.

KEN STARR: I’m glad Sai has the regulations. You may not want to — (laughter) — but instead of describing them, we can go to them.

I think that that would be okay. Not the strongest argument, but that would be utterly incompatible with the whole spirit and thrust of these regulations, which is he is an officer of the Justice Department. He could not send a report to Congress without the approval of Rod Rosenstein.

JOHN YOO: So we have about 15 minutes —

VICTORIA TOENSING: But what of the Constitution? See, I say that the Constitution doesn’t approve of that.

JOHN YOO: No, you are wrong about that. So we have about 15 — (Laughter.)

VICTORIA TOENSING: I disagree with you. (Laughter.) I disagree with you.

JOHN YOO: We have about 15 — just a little under 15 minutes for question and answers, so there is a mic in the back. Wait for it to come to you. Please state your name and affiliation, and please ask a real question.

KEN STARR: And we have one Baylor Bear there.

JOHN YOO: Okay. Whoever. He wants to call on the Baylor person, which is obvious to tell just from someone’s external appearance, I suppose, that you went to Baylor.

Judge, which person is is?

KEN STARR: Caleb.

JOHN YOO: Oh, you went to Baylor, but you’re actually just moving the microphone.

KEN STARR: I just want you to recognize him. (Laughter.)

JOHN YOO: Okay, the man on the right there, the closest person to you.

Q: Hi, my name is Nicole Penn. I’m a research assistant here. I work for Lynne Cheney. I was just wondering if you could go back to the Burr Trial, and although Jefferson was subpoenaed and he questioned whether he really could be subpoenaed, he did turn over the documents, or some summary of them. So what precedent did that set or not set for what could be done in the 21st century?

JOHN YOO: I actually wrote this long article about this that Sai mentioned. I was actually at that conference, too, where you had the 2,000 — he also forgot to mention the guy with the sign who walked around saying, “Impeach Starr. Impeach Starr.” (Laughter.) He forgot that one.

KEN STARR: And my response: I agree. (Laughter.)

JOHN YOO: So, yes, in the Burr Trial, President Jefferson was a witness. Aaron Burr, who was on trial for treason — John Marshall, Chief Justice John Marshall happened to be the trial judge. Burr actually said that on the way to committing his uprising in Louisiana Territory, that he had stopped in Washington and talked to Jefferson and that Jefferson had personally approved the whole expedition. This is very similar to today, in a way.

So Marshall issued a subpoena for the records, which Jefferson turned over in edited form, with deletions for executive privilege. This was the first time a president actually claimed executive privilege.

And then Marshall subpoenaed him to appear as a witness. And Jefferson at first pretended he didn’t get the letter, and then the second time Jefferson made the same arguments that Clinton made against the independent counsel: I can’t be dragged back and forth around the country. How could I do my job as president?

Actually, Clinton’s team didn’t know about this. They should have cited Jefferson. The argument came from Jefferson. And actually the interesting story is Marshall didn’t — Marshall dropped it. He didn’t actually try to order the president to obey the subpoena when Jefferson refused to appear.

But the moral of the story, what happened in the end? Burr was acquitted. So in a way that’s — it’s an interesting question. What if Trump refuses to cooperate with all of the independent counsel activities? In the end, it means that Mueller can’t actually go forward with a lot of these prosecutions as — (inaudible) — might like. (Laughter.)

Wow, this is really cool. This has never happened before in my time here. Over here.

Q: Hi. Deborah Weiss, Center for Security Policy. My question is: What is the scope of the special counsel’s mandate? How specific does the mandate has to be? And does — did it meet the test with the Mueller investigation?

And second, I just want to add that, Judge Starr, you said that the question here is how do we investigate the president, and clearly that is what Mueller is doing, but I thought the question was supposed to be the investigation on Russia. So thank you.

VICTORIA TOENSING: Well, the mandate. Rod Rosenstein is a better lawyer than this. I don’t know. It just boggles my mind. It’s basically this: any link between the Russian government and anyone associated with the Trump campaign — words pretty close to that — and I say that means the corn farmer in Iowa who was co-chairman of the Trump campaign and sells corn to Russia — could be investigated under that. It was just — I mean, there was no time limitation, no real subject matter. It was just like, wow, you know, expansive as can be.

And I think that this should be a crime. You should have a criminal 18 USC in mind when you’re doing that. It was a counterintelligence investigation, which is a very big deal for those of us who have worked in the Justice Department on the criminal side and understand the counterintelligence side. They use different agents. There are different rules altogether. And it was, as Mueller said when he was testifying — no, it wasn’t Mueller. It was Comey, said, well, we have a counterintelligence investigation — (inaudible). Never said it was a criminal investigation, although the Democrats like to just jump into it and say the president is under criminal investigation. It’s never been said.

KEN STARR: It’s a point of clarification. Is your question — your second question having to do with the pre-presidential nature of this activity? If I understood, I may have misapprehended your question. You said it’s an investigation in Russia. Was it an investigation of the president? Can we give her the mic again? Sorry. Thank you.

Q: I’m wondering if the mandate — well, I guess it was two things. One is I was wondering if the mandate was meeting the requirement to be specific and restrictive enough. And the second thing that you’re referring to was, yes, are they even complying with the mandate? What’s the mandate? I thought it was supposed to be a Russian investigation, but it seems to be an investigation of the president.

KEN STARR: I understand. I was just going to say, we don’t know to what extent Rod Rosenstein has expanded that original mandate. I mean, there are other appointments and the like, and Janet Reno specifically — to go back to my book and my own experience, which is parallel — it may not be exactly on point — there were times under the statute when she would say, essentially calling us up, “Would you please review the travel office firings? Would you please review the FBI files matter?” And we would say, “Yes, if you want us to do that, we will do that.” The same kinds of conversations I’m sure go on between Mueller and Rosenstein.

Now, Vicky, you may want to correct some of that, but that’s my understanding of how the regulations would actually operate in practice.

VICTORIA TOENSING: Well, it’s my understanding that Mueller came back to go after Paul Manafort, because of course that had nothing to do with Russian or the Trump campaign collusion, or whatever that is, with Russia. It had to do with all these kinds of financial crimes.

JOHN YOO: Sai?

SAIKRISHNA PRAKASH: It says here the special counsel will be provided a specific factual statement of the matter to be investigated. But then it goes on to state that, if in the course of his or her investigation, the special counsel concludes that additional jurisdiction beyond that specified as an original jurisdiction is necessary, he or she shall consult with the attorney general.

So my understanding is that there have been conversations between the special counsel and Robert Rosenstein to expand the jurisdiction. And that’s why we are talking about —

VICTORIA TOENSING: In fact, the Virginia judge demanded that expansion. I don’t recall ever reading it, but I do recall that that was an issue in the case for Manafort with all the tax and — (inaudible).

JOHN YOO: It could well be classified. It doesn’t have to be public, does it, Sai?

SAIKRISHNA PRAKASH: I don’t think so. No.

VICTORIA TOENSING: But that — but when you say any link between the Russian government and the Trump — anyone associated with the Trump campaign, that’s not a very specific statement.

JOHN YOO: Right here.

Q: This is for Judge Starr. In your retirement, I’m recommending you go back to the DC circuit. I think you would be very good there.

JOHN YOO: I didn’t notice he was retired.

Q: Well, his new career. His new outlook on life.

KEN STARR: Thank you, I think.

Q: Yes, exactly. An opportunity you cannot refuse, right?

KEN STARR: The Senate confirmation hearing will be quite interesting.

Q: We’ll get the file out, yes. (Laughter.) The questions would be good. I just — I’m trying to link what we are talking about today’s situation with the Whitewater, which is what your expertise was, and it — as far as I recall, there was an issue there — one of a bajillion issues, but about the Treasury Department and the RTC and the communications with the White House and the scope of the investigation. There was a criminal investigation there. And were they were allowed to communicate or not communicate, and did they have independent chains of command? I just wondered how that would compare to today’s situation.

KEN STARR: Oh, that’s very interesting. We were in fact — part of the investigation I inherited from my distinguished predecessor, Bob Fisk, was whether there was improper political interference that might constitute conceivably obstruction of justice.

But main Treasury and specifically Roger Altman, the deputy secretary of the treasury, and the Independent Resolution Trust Corporation, and so that was what I inherited from him. Now, when you go back to his charter, nothing about that. But he interpreted the charter in terms of a rising out of and relating to — these very broad words — but especially relating to jurisdiction, rising out of — gives us some really neat questions in federal jurisdiction.

But “relating to” is a term that Congress frequently uses in statute, and it’s almost universally interpreted by the courts as that’s really broad. That doesn’t mean anything and everything is related to in this postmodern era, but it means that Congress saw fit to give a broad grant of jurisdiction.

And that I think is the way Bob interpreted his mandate from the attorney general to authorize him to look into that.

JOHN YOO: Well, we have just about 15 seconds, so I think I’ll end — oh, there is one more quick question. Okay. Hold on one second.

Q: Frank Lockwood, Arkansas Democratic Gazette.

KEN STARR: Oh, finally.

Q: You dedicated the book to the people of Little Rock. I was surprised by that. What made you decide to do that?

KEN STARR: Thank you for asking that because one of the things that I say in the book after the — so read beyond the dedication. One of the things I say in the book is, drama experiences in Little Rock, and I share several specific examples of this, the people of Little Rock were unfailingly gracious and hospitable.

I didn’t get a lot of social invitations, but Little Rock is a very gracious place filled with very good people. And one story that I do tell in the book is a very prominent person saying to me early on at an event that you may have attended, because there were a number of journalists there. He said we’re not going to ask you any question about this, but here you are. You have taken on from Bob Fisk, so we’d like to know you. So this person then says, I want you to know this is very hard for us because we know these people. Some of them we go to church. was a Sunday school teacher at First Presbyterian in downtown. We know them. We go to the same restaurants and so forth. We like these people.

And then this person said, but we want to know what happened. And so there it was: You shall know the truth. So they were wondering, they were friends and so forth. I also recount — may I tell one more war story?

JOHN YOO: Can’t stop you.

KEN STARR: Oh, great. For good cause. And the clock is there. We do have a clock here, so it’s very digital. And that is — so we had a pretty rough trial day, with Jim Guy, the governor. He was an enormously able guy. Just wish he hadn’t been quite — wish he had been more honest.

JOHN YOO: You mean you wish he wasn’t a criminal?

KEN STARR: Yes. My job would have been easier. And James and Susan McDougall, bless their hearts, and God rest his soul. They were crooks. They were just crooks. And we proved it beyond reasonable doubt before a jury.

So anyway, it had been a pretty rough morning, and I treat the trial team to Luby’s, one of my favorite bistros, with its cafeteria based in my hometown of . So this nice guy comes up to me and says, “Well, how is the trial going?”

Well, it hadn’t gone that well that morning. And I put the best face, and I said, we love our judge. Judge George Howard Jr., honest person, grew up in segregated Arkansas, African American judge appointed by . He’s such an honorable judge. The jury is very attentive. It’s a very representative jury. Experts said, oh, this is a pro-defense jury. Jim Guy’s going to walk. Susan will probably walk. Jim Guy will probably get convicted. I mean, Jim McDougall will probably get convicted. All three were convicted. And so I said, well, but thank you for asking. And he said, “Well, to be honest I’m rooting for the other side.” Well, that’s Little Rock. (Laughter.) Nice people.

JOHN YOO: Well, I’m not rooting for the other side. I want to — please join me in thanking our three panelists, and Judge Starr especially, and thank you for coming to AEI today.

There will be an opportunity to buy signed copies of the book right out in the alley here. Not alley — in the passageway. (Laughter.) You got me thinking about Little Rock and the things that happened there. In the passageway, right here, directly after the panel. Thank you very much.

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