Ken Starr might be the most famous lawyer in America outside of the Supreme Court. He has served as a federal judge on the DC Circuit Court and later as solicitor general. He has practiced law and taught law, been the dean of Pepperdine’s Law School and the president of Baylor University. But his most high-profile job was serving as the independent counsel who was charged with investigating President Bill Clinton in 1994. The fruits of his investigation led to Clinton’s impeachment.
I was a 22-year-old staffer at THE WEEKLY STANDARD during the impeachment fight and one of my favorite memories of that time was being dispatched to the Government Printing Office the morning the Starr Report was released. This was before pdf’s or the intertubes and the only way to get the report was to stand in line at the GPO, hand over a personal check, and pick up soft-cover bound editions of the report. It came in two volumes, each of which was over 3,000 pages long. My colleague Vic Matus and I bought enough copies to fill two large cardboard boxes, which we then threw in the trunk of my car and delivered back to the grownups back at TWS.
For that brief time Starr was the most important figure in American public life. He seemed to me impossibly remote and unknowable—one of those titans who don’t really exist except on television and in the papers. So I was shocked when, 20 years later, I met him in a hot tub on the lido deck of a cruise ship, floating in the middle of the Caribbean. I was in the hot tub; he was not. (Even so, that’s the strangest sentence I’ll ever write.)
As I’ve gotten to know him slightly, I’ve been unsurprised at how smart and judicious Starr is, but genuinely shocked by his kindness and warmth. He is, in the best sense, a real man, and not just some figure from the TV.
This week Starr graciously agreed to sit down with me (via email) and answer some questions about special counsels, the Trump White House, and what life is like in Washington during these rare investigations.
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Jonathan V. Last: What’s the most important advice you could give Bob Mueller (or any other special counsel) about setting up their office? Or starting an investigation?
Ken Starr: Get the best possible people, with the most experience and best judgment. Watch out for ideologues or lawyers, no matter how able, with an agenda. Make sure you have the complete support of the deputy attorney general, who appointed you (in light of Attorney General Sessions’s recusal).
JVL: The press coverage of a special investigator always looks—from the outside, at least—problematic. What sort of lessons did you learn about handling the press?
KS: Hire a press person who has experience with the criminal justice system, and who understands fully the ramifications of grand jury secrecy, as well as confidentiality more generally. I didn’t, but should have.
JVL: How does a special investigator set the limits of an investigation?
KS: That’s the responsibility of the deputy attorney general, to provide the job description with sufficient clarity as to remove any ambiguity. It is the special counsel’s job to make the judgment calls when it appears that the investigation may be approaching the outer perimeter of the authorized subject matter. When in doubt, return to the deputy attorney general to seek clarification or, if need be, further authorization for what may appear to be an unrelated line of inquiry.
JVL: You deposed President Clinton. How does an investigation determine whether or not it needs to depose the president? And what’s that like as an experience?
KS: After careful evaluation and assessment of the relevance of his testimony, the president should then be treated as yet another witness, but one entitled to maximum flexibility in terms of scheduling the interview or deposition (or grand jury testimony). There is no presidential immunity from the orderly process of law.
JVL: How do you figure out who you should grant immunity to? And when should you do it?
KS: Immunity is an important tool in the toolbox. The decision to grant (or deny) is a classic judgment call. The overarching question is: “Will the ends of justice be served by granting (or denying) immunity in this instance?” That decision is best made collaboratively, with advice and counsel flowing to the special counsel from all appropriate members of the team.
JVL: How does the presence of a special counsel (or in your case, an independent counsel) affect the day-to-day life of people working in an administration? What advice would you give to someone working in an administration when there’s a special counsel investigation ongoing?
KS: In a word, “miserable.” A special counsel investigation is by definition intrusive and disruptive. It is one of the prices we pay to ensure honest government. At times, it’s a heavy price, including the determination by administration officials that they need to retain a lawyer at considerable personal expense. The president, and in particular the chief of staff, need to set a tone that the work of the administration must continue, with a laser-like focus on accomplishing the president’s agenda and serving the American people.
JVL: It’s conventional wisdom, even among President Trump’s defenders, that he’s made his own life harder by tweeting about the investigation, and Rod Rosenstein, and Mueller. But from the outside, that seems somewhat overblown: The investigation is the investigation, whatever the president says about it. Is that true? Or has the president really done himself no favors on this?
KS: Reasonable minds will differ, but I think it better and wiser for the president to remain focused on his agenda and refrain from attacking the prosecutor. The American people would be reassured—and well served—by a commitment by the administration, including the President himself, to cooperate fully with the investigation.
JVL: Being a special counsel or an independent prosecutor puts you in a unique, strange position. It’s an incredibly important job and the entire nation focuses on the man doing it. Yet it’s one of a very small number of jobs that no one can ever plan to have—not even in the daydreamy way you can “plan” to be president, or a Supreme Court justice.
And to make it even stranger, there are have historically been so few special counsels at the presidential level that there aren’t a ton of precedents to guide you. At least from where I sit on the outside, the job looks incredibly challenging. Almost by definition it seems like a special counsel is exploring uncharted territory, in the dark, with a dense bank of fog surrounding him.
In practice, is that what it’s like? Or are there enough helpful analogues that the job is less mystifying than I’m imagining?
KS: You’re spot on. There is no guide book or manual of procedure. There are prior episodes, each with its own potential lessons. The practical goal is to create a microcosm of the Department of Justice as fully and appropriately as possible, including strict adherence to the appropriate guidelines (such as the Principles of Federal Prosecution). The American people need to be assured that the special counsel is, in effect, a surrogate, a substitute, for the United States Attorney’s Office or the Criminal Division of Main Justice. He is not to have a roving commission to investigate whatever and whoever he chooses. That reassurance may well require an effort, through appropriate means, of educating the American people that the investigation has guardrails imposed by law.
