Former Attorney General Eric Holder joined the chorus Democrats calling for the full release of special counsel Robert Mueller’s final report, but in the wake of the Starr report he made the opposite argument.
Speaking with Ari Mebler on MSNBC last Monday, Holder said, “You look at the letter and you’re trying to figure how much of this is Barr, how much of this is Mueller, how much of this is based on the Mueller findings?… Congress and the public are going to have to get access to the Mueller report.”
Yet back in 1999, when he was deputy attorney general in the Clinton administration, Holder’s position was starkly different. “Although there is a legitimate concern that the American people have a right to know the outcome of an investigation of their highest officials, the reporting requirement goes directly against most traditions and practices of law enforcement and American ideals,” he said after the completion of independent counsel Ken Starr’s investigation.
At the time, the Justice Department was governed by the independent counsel statute which was supported by many Democrats from the time of the Watergate era up until Starr started investigating former President Bill Clinton. Then-Attorney General Janet Reno’s DOJ came out in opposition to the independent counsel statute in 1999 and it lapsed. The Clinton administration replaced it with the current and more restricting special counsel regulations, which Attorney General William Barr cited in his letter to Congress and could explain why the Mueller report that gets made public might not end up showing the same level of detail as the Starr report.
Reno would speak in front of the Senate Governmental Affairs Committee on May 14, 1993, urging them to reauthorize the independent counsel statute. “It is my firm conviction that the law has been a good one, helping to restore public confidence in our system’s ability to investigate wrongdoing by high-level Executive Branch officials,” she said. The law was reauthorized the next year.
But, in 1994, Starr was appointed as independent counsel to investigate the Clinton-related Whitewater scandal, and he would carry out his investigation for four years. In September 1998, it culminated in the release of the Starr report — which was full of salacious details about Clinton’s affair with White House intern Monica Lewinsky — and ultimately led to the impeachment of Clinton in December 1998. The Starr report was around 445 pages long, while Mueller’s report is nearly 400 pages in length according to Barr.
By the time of the Starr report, the independent counsel law had fallen out of favor with Clinton’s Justice Department. Reno sent Holder to speak in front of the House Judiciary’s Commercial and Administrative Law Subcommittee on March 2, 1999, where he revealed that the DOJ was officially opposing the reauthorization of the law.
Holder testified that a major flaw with the independent counsel law was its reporting requirements, which allowed non-criminal but potentially politically damaging information to be made public. “A final problem … is the Act’s requirement that a final report be prepared by the Independent Counsel,” he said.
“It is contrary to our concept of a presumption of innocence, our placing of high value on rights of privacy, and our Departmental tradition that we reveal offenses in the courtroom during a criminal trial, not by filing a document that is never filed when we decline to prosecute ordinary criminal cases and that may reveal information that subjects an individual to public embarrassment,” he said. “But worst of all … the reporting requirement provides an incentive for Independent Counsel to over-investigate every detail in order to avoid criticism that their final reports missed something.”
Twenty years later, Holder is striking a different tone.
Melber asked him last week: “It seems to deal very hermetically with a few things but doesn’t in any way tell Congress about the other individuals or other issues under investigation that were declined to be charged. Does that requirement still have to be met by the attorney general?”
Holder answered: “Yes, I think it still has to be met. It was anticipated that that would be met by a fulsome disclosure to Congress about the things that you have just mentioned and all the other things that Congress needed in order to make a correct decision as to what actions should be taken with regard to a president who was under investigation.”
“This is just a four-page memo that makes some really consequential determinations. And it seems to me that the American people and Congress are entitled to hear substantially more than simply this document,” Holder said.
Earlier this year, Holder tweeted: “Watergate precedent: Congress must use hearings to examine questions surrounding Trump / his Administration. Important parts of Mueller ‘report’ may not (but should) be made public.”
Holder stressed his belief that the Mueller report must be made public. “If the Mueller Report contains evidence about impeachable conduct / offenses that, at a minimum, must be shared with Congress. It would be irresponsible for DOJ to hold on to this kind of information — for any reason. No privilege claim would be valid,” he said.
“The report must be made available,” Holder said in a tweet last week.
But back in 1999, Attorney General Reno made it clear that the Clinton administration was no longer fans of lengthy investigative reports in the wake of the Starr investigation. She told Congress: “A final problem that I wish to address briefly is the Act’s requirement that an independent counsel prepare a final report. On one hand, the American people have an interest in knowing the outcome of an investigation of their highest officials. On the other hand, the report requirement cuts against many of the most basic traditions and practices of American law enforcement.”
Reno claimed the reporting rules at that time allowed too much investigative information to be released. “Under our system, we presume innocence and we value privacy,” Reno said. “We believe that information obtained during a criminal investigation should, in most all cases, be made public only if there is an indictment and prosecution, not in lengthy and detailed reports filed after a decision has been made not to prosecute. The final report provides a forum for unfairly airing a target’s dirty laundry… We have come to believe that the price of the final report is often too high.”
Congress allowed the independent counsel law to expire in the summer of 1999, and Clinton’s DOJ would create new Office of Special Counsel rules a week later. The new regulations — including limited reporting requirements — from Clinton’s Department of Justice were entered into the Federal Register on July 9, 1999 and they still govern much of the operation of the special counsel’s office to this day.
Those Clinton-era DOJ regulations are cited extensively in the letter that then-Acting Attorney General Rod Rosenstein wrote appointing Mueller as special counsel on May 17, 2017.
In his four-page letter on the Mueller report last Friday, Attorney General William Barr stressed that, when making a decision on what information to release, he was following the Clinton-era DOJ rules that were still in place. He cited them directly: “The relevant regulations contemplate that the Special Counsel’s report will be a ‘confidential report’ to the Attorney General. See office of Special Counsel, 64 Fed. Reg, 37,038,37,040-41 (July 9, 1999).”
“As I have previously stated, however, I am mindful of the public interest in this matter,” Barr said. “For that reason, my goal and intent is to release as much of the Special Counsel’s report as I can, consistent with applicable law, regulations, and Departmental policies.”
