Special Counsels and the Presidency: a Conversation with Ken Starr on the Role of the Constitution and the Ongoing Mueller Investigation
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AMERICAN ENTERPRISE INSTITUTE SPECIAL COUNSELS AND THE PRESIDENCY: A CONVERSATION WITH KEN STARR 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 VIRGINIA SCHOOL OF LAW; KEN STARR, AUTHOR, “CONTEMPT: A MEMOIR OF THE CLINTON INVESTIGATION”; VICTORIA TOENSING, 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 Hoover Institution 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 special counsel and an investigator, also a deputy assistant attorney general 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 prosecutors 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 the nation 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 Whiskey Ring. 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 prosecutor, 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 United States Senate. 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. Atlee Pomerene, 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 Saturday Night Massacre. Cox is fired. Robert Bork becomes the acting attorney general, is the very distinguished solicitor general, and he appoints Leon Jaworski. 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 Ethics in Government Act 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 Iran-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 Monica Lewinsky. 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, Janet Reno 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.