Ken Starr can look like a Pixar character: grandfatherly, dimpled, with long pillowy cheeks and cunicular teeth. It’s not distinctive; it’s the kind of face you swear you’ve seen many times. Indeed, you probably have, because if you examine a certain subset of American politics, he’s everywhere. Look at his Supreme Court connections alone: John Roberts once served under Starr. Brett Kavanaugh was his mentee. He was pals with Antonin Scalia, vetted Sandra Day O’Connor, and calls Clarence Thomas “a whole lot of fun.” Theodore Olson (the lawyer who’d go on to represent George W. Bush in Bush v. Gore and become his solicitor general) spent that fateful election night watching the results come in at his house. Ken Starr is basically the Forrest Gump of Republican America. You might not have noticed, but he’s usually around. Right now, for instance, he’s on the advisory board of Turning Point USA, a conservative activist group started by Charlie Kirk. You might also know him as a Fox News commentator or scandal-ridden ex–university president, as a member of Trump’s first impeachment team, or, most famously, as the independent counsel in the Bill Clinton years whose combination of piousness and prurience taught an entire generation of American children about oral sex.
It’s that five-year stewardship of the Clinton investigation that made Ken Starr a household name. And it’s against those five years that everything he’s done since must be measured. The sporadic headlines he’s since generated in some ways reflect the general decline of his party. Once criticized for a sense of rectitude so priggish it began to appear perverse, Starr course-corrected by defending Jeffrey Epstein and then Donald Trump. The guy who took a popular president down a peg for lying about sex lost his own job as a popular university president for presiding over a system that shielded rapists and ignored victims. And now the great investigator of Clintonian infidelity stands accused of having an extramarital affair himself.
The owner of one of the most famous conservative “brands” has mainly succeeding at muddling it. Starr’s swampward trajectory corresponds roughly to the rise of reactionary populism, but his individual decisions can still surprise; spurts of pro bono work and disquisitions on faith serve as occasional reminders—against a seamy backdrop—of what Starr’s profile used to be. It has been argued that the man many knew as a bland and scrupulously correct son of a minister changed during his stint as independent counsel—that in the course of becoming a public figure while also learning on the fly how to be a prosecutor, he became more of a persecutor too, less concerned with ethical constraints while technically respecting legal ones. (Mostly. Sam Dash, who was lead counsel to the Senate’s Watergate Committee and acted as special ethics adviser to Starr’s team, resigned in protest over what he saw as Starr’s decision to act as an “aggressive advocate” for impeachment.)
That increasingly appetitive (or deranged) prosecutorial approach earned Starr so much contempt that it has perhaps overshadowed some of his less controversial qualities. Friends and associates unfailingly describe Starr as pleasant, for instance. They also describe him as extremely hardworking. He is rarely, however, called brilliant, and this is surprising: The man almost became a Supreme Court justice. According to a 1998 Michael Winerip piece in the New York Times Magazine, Starr’s name may have been scrubbed from the Bush administration’s short list in 1990 because Starr was considered—at least then—a mite too ethical. As the senior Bush’s solicitor general, he’d sided with whistleblowers against the administration that hired him in a case involving defense contractors. The administration did not care for that. Here’s one way to gauge what this earlier version of Starr was like: The folks who chose David Souter for their nominee to the Supreme Court dismissed Starr as insufficiently conservative. He’d been faulted with, among other things, failing to disclose O’Connor’s pro-choice views to his fellow Republicans when he vetted her. It’s hard to imagine how different Starr’s public profile might be today if things had gone differently.
For someone with such Zelig-like ubiquity, not much has been written about his early years. Before the Clinton Whitewater investigation, Starr, who clerked for Chief Justice Warren Burger, was rising in Republican circles with impressive and perhaps questionable speed. As Winerip writes, “Starr had to learn as he went. He became an Appeals Court judge in 1983, though he had never been a lower court judge; the Solicitor General—the Government’s lawyer to the Supreme Court—in 1989, though he had never argued before the Supreme Court; the independent counsel in 1994, though he had never been a prosecutor.” This trend would continue after his stint investigating the Clintons: He was hired to helm Pepperdine’s law school and then Baylor University despite having no administrative experience to speak of. (Perhaps, given the sexual assault scandal that would later consume Baylor, experience matters.)
If the Clinton years gave him a taste of real fame—he was Time’s Man of the Year in 1998, along with Bill Clinton—the aftermath saw him trying to capitalize on it. Starr became, if not quite a mercenary himself, the mercenaries’ lawyer. He’d done plenty of that before, of course: He was profitably defending tobacco companies even while he was investigating Clinton (who was trying to regulate them). But his years digging into the president empowered him to use his prestige in a slightly different way—as the guy who maybe knew a guy. When Whitewater needed investigating, Starr had been there to do it and his reasons were at least nominally public-spirited. But when Blackwater needed defending in 2006, he was there to do that too—this time by joining a lawsuit that had been well underway in order to petition John Roberts, his former deputy in the solicitor general’s office, who had only recently joined the Supreme Court. Marc Miles, the attorney representing the families of the four Blackwater contractors killed in Iraq, said at the time, “I think that Blackwater has brought in Kenneth Starr to somehow leverage a political connection to help them succeed in a case where they can’t win on the merits.”
If this was the case, it didn’t work—Roberts rejected his former superior’s argument that Blackwater should be “constitutionally immune” to the lawsuit. (Roberts would rule in Starr’s favor the same year in Morse v. Frederick.) It wouldn’t be the last time Starr appeared to peddle his influence. When Jeffrey Epstein needed help evading charges for raping and trafficking minors in 2007, the Texan with a reputation for primness joined the pedophile’s legal team and, as described in reporter Julie K. Brown’s book, became one of the prime architects of a defense notable for its innovative savagery, which included attacking prosecutors and impugning their motives. Starr attempted to leverage his contacts in the Justice Department to try to get the federal charges dropped. It also didn’t work. But the plea deal Epstein got was famously and shockingly lenient, thanks in no small part to Starr’s efforts.
And perhaps most incongruently, when the most prolific liar in American presidential history—who paid the women he had extramarital sex with to shut them up—faced impeachment charges in 2019, Starr didn’t just rush to defend him (even though he’d once called Starr a lunatic). The author of the Starr Report, which even Diane Sawyer derided as “demented pornography for puritans,” showed up in a black cowboy hat and a trenchcoat—dressed as an almost literal black-hat version of the finger-wagging disciplinarian of errant presidents he used to be.
It’s a discordant set of jobs for someone who had built a monumental and much-mocked reputation for prudish propriety. In a plot turn that would be more poetic if it weren’t so unsurprising, it emerged this month that Starr, that avatar of good Christian values who once stood for everything the Clintons weren’t, had himself allegedly conducted an extramarital affair with a woman who had once worked closely with him. (She says it began in 2009, roughly a decade after his investigation of Clinton concluded.)
The woman, Judi Hershman, explains she is disclosing her affair with Starr (which she’d planned to take to the grave) because of his response to a story she wrote for Slate about a disturbing encounter with Brett Kavanaugh that she’d informed Starr about back in 1998. She wrote that Kavanaugh had screamed at her with “a deranged fury” when he found her working in a conference room. (In her Medium piece she adds that Starr’s response when she requested an apology from Kavanaugh was: “I’m apologizing to you for him. This is it.”) Starr’s comment on Hershman’s story in Slate was “I do not recall any mention of any incident involving Brett Kavanaugh.” But the simple denial was not enough. In what Hershman calls an “embellishment,” he added: “To the contrary, throughout his service in the independent counsel’s office, now-Justice Kavanaugh comported himself at all times with high professionalism and respect toward all our colleagues.”
We know now that this is the basic template for how Ken Starr responds to a crisis because he was recorded doing it. In a 2016 TV interview for KWTX News 10, Starr was asked about an email a woman had sent him on Nov. 3, 2015—and there the email was, in full view, bearing his email address—in which she reported being raped. The subject line, “I Was Raped at Baylor,” seems hard to overlook. Starr’s first response squishily acknowledges this: “I honestly may have. I’m not denying that I saw it.” But then a woman named Merrie Spaeth, a communications consultant and family friend he’d brought with him (and who had been Hershman’s boss during the Clinton investigation), interrupts to ask the news director not to use that portion of the interview. He refuses and she takes Starr to another room to confer. “She needs to ask you that question again. Whether you do it on camera or not it’s up to you,” Spaeth says to Starr when they return. Starr then says to the camera: “All I’m gonna say is I honestly have no recollection of that.” He then turns to Spaeth. “Is that OK?” But then he tries again and, as with his response to Hershman, he doesn’t leave well enough alone. He adds. “I honestly have no recollection of seeing such an email and I believe that I would remember seeing such an email” (emphasis mine). By 2018, two years after he’d been ousted as university president, the line had evolved beyond all recognition: “Unfortunately—and this is going to sound like an apologia, but it is the absolute truth—never was it brought to my attention that there were these issues.”Is it interesting that a man who spent years trying to prove that an evasive and lawyerly president lied ended up agonizing over how exactly to legalistically phrase his own failures? No! It is only moderately more interesting that the Starr marriage—which openly courted comparisons to the Clintons’—now appears to be in the position it smugly criticized: In 1999, Alice Starr famously said she’d divorce her husband if she were in Hillary’s place, remarking that she would “rather not be married to someone who doesn’t love me enough to remain faithful.” “We took a vow to be faithful to one another when we married,″ she said of her own marriage, adding that they’d “lived up to that vow.″ In response to Hershman’s affair allegation, Alice Starr provided a statement through Merrie Spaeth affirming her marriage to Ken: “We remain devoted to each other and to our beautiful family. Judi Nardella Hershman was Alice’s friend. Alice set up jobs and board appointments for her in McLean, Virginia.” (Ken Starr himself had no comment, according to Spaeth, who also added that because of how busy the independent counsel’s office was in the days before the 1998 House Judiciary Committee hearing, it would have been impossible for Judi Hershman to have found herself alone in a conference room with Brett Kavanaugh.)
That Alice is standing by her man is no surprise; when Ken began his tenure at Baylor, she said in an interview, “He can’t do anything but tell the truth—ethics are extremely important.” What those ethics are remains something of a mystery. Starr’s post-Clinton priorities were interesting and not altogether predictable: They have ranged from appealing for clemency for death row inmates in 2005 and 2006 to defending Epstein in 2007 to campaigning against same-sex marriage in 2008 to signing (in 2013) a letter asking that a teacher who pleaded guilty to molesting five female students get no jail time, just community service.
Put differently, Starr has occupied some strange spaces in American controversies besides the one he’s best known for. He supported Merrick Garland’s nomination to the Supreme Court, for instance, but he also testified about “troubling questions” at Sen. Ron Johnson’s circus of a Senate hearing on so-called election irregularities. He’s a little too odd to classify as a mere hypocrite. Even his condemnations take some surprising turns: In a chapter of his latest book, Starr comes perilously close to condoning the removal of Confederate monuments: “It’s one thing to tear down monuments of Confederate generals, as military champions of the unspeakable institution of slavery. Whether you like these desecrations or not, that reaction is understandable, albeit lawless.”
Starr’s isn’t a story of straight decline. He never really left, for one thing; that makes a comeback trickier. But neither has he ascended to become a fixture in the conservative firmament. The way he engages with modern conservatism is almost hilariously anti-strategic: Though certainly capable of partisan bile, he’s at other times so quaintly bookish that he barely seems to understand his party at all. When he addressed the young Trump-crazed Republicans at the 2019 Turning Point USA summit (other speakers included Sean Hannity, Kimberly Guilfoyle, and Donald Trump Jr., to give you a sense), he interrupted the music and the lights to ask everyone to sing “My Country, ’Tis of Thee” and then delivered a lecture encouraging them to study history, including the writings of Louis Brandeis and Lincoln’s second inaugural address.* It is bold—in a mild way—to lecture about history when you know you’re up against Guilfoyle’s incantatory shouts. It might also explain the limits of his influence. Then again, so might the lack of a consistent agenda. Starr’s lawyering has been deployed in the service of both conventional and distasteful efforts but doesn’t coalesce into any particularly cohesive sense of purpose. And while his books register a real desire to provide intellectual backing for conservative impulses, what little ideology he has—to the extent that it’s faith-based—is compromised by his own hypocrisy.
Starr does still seem to enjoy the spotlight even if he’s not especially gifted at keeping it. Thirty years after he shot to national fame, he hasn’t lost the ability to provoke an “Oh, him!” reaction when his name comes up, and Trump’s impeachments presented not one but two occasions for him to reemerge to the broader public as a voice of authority on the thing he has long been most famous for. But his interventions on those fronts have been strangely muddled. He obsessed over the finer points governing special counsels in a magazine article but then cut an absurd figure in a black cowboy hat at Trump’s side. Having made an impression neither as an intellectual nor as a firebrand, he’s now on the board of an organization fiercely touting an anti-vaccination agenda. He’s on Fox News. And he’s earning headlines for allegedly cheating on his wife. It’s not exactly the Supreme Court.
How can you wage culture war when your warriors are hypocrites and reprobates?
I had been on the bike trip through Tuscany in 2009. Early one evening while our spouses were at dinner elsewhere, [Kenneth] Starr had stepped out from the shadows of the grounds of the inn where we were staying and called me over. After expressing his feelings for me, he pulled me into an embrace. This was the beginning of a fond, consensual affair…. Starr had taken my hand and placed it on his crotch….
Our affair ran its course after a year or so of occasional encounters and a steady exchange of affectionate texts and emails.
After four years of unapologetic immorality from Donald Trump, the allegation by Judi Hershman that she had an affair with Ken Starr—he who moved heaven and earth 23 years ago to document in pornographic detail Bill Clinton’s affair with Monica Lewinsky—may seem quaint. If hypocrisy, as La Rochefoucauld said, is the tribute vice pays to virtue, it wasn’t a tribute Trump often paid. Our 45th president didn’t put a lot of energy into feigning piety.
But assuming Hershman’s allegation is true (Starr hasn’t yet come forth to deny it), this revelation of Starr’s apparent hypocrisy arrives at an inconvenient moment. Many Republicans are trying right now to escalate the culture war, and you can’t easily wage culture war with compromised warriors.
The GOP forged a tight relationship with social conservatives in the summer of 1980, when then-candidate Ronald Reagan—looking to peel off devout Christians from President Jimmy Carter’s base of support—talked of being “born again” and became the first presidential nominee to end his acceptance speech with “God bless America.” (For those keeping score, Reagan was America’s first divorced president. Trump was the second.)
The strategy worked. In 1976, Carter had won evangelicals by 25 points. In 1980, he lost them by 26 points. At the 1984 convention, Rev. Jerry Falwell, founder of the conservative Christian group Moral Majority, decreed that Reagan and Vice President George H. W. Bush were “God’s instruments in rebuilding America.”
In 1993 Bill Clinton became president, ending 12 years of Republican White House rule. It was clear to anyone paying attention that Clinton had been less than scrupulously faithful to his wife, to whom he was otherwise tightly bonded. Apoplectic conservatives wasted no time pounding him as antithetical to “family values.” That didn’t work. Most voters put their pocketbook first and, with the economy growing in 1996, they re-elected Clinton handily.
Starr had by then taken over the independent “Whitewater” investigation. Ethical questions about an Arkansas real estate investment during Clinton’s time as governor had in 1994 prompted the appointment of a special counsel by Clinton’s attorney general. The initial lead investigator, Robert Fiske, was on the verge of indicting several Clinton associates, but his initial report in June 1994 found no wrongdoing by Clinton. Weeks later, a pair of Republican-appointed judges fired Fiske and brought in Starr, despite Starr’s lack of prosecutorial experience.
Starr expanded the scope of the investigation and dragged it out for years. When he heard of Clinton’s affair with Lewinsky in January 1998, he shifted the inquiry’s focus and used his findings to accuse Clinton of perjury. The resultant Starr Report included the most embarrassingly clinical details of a president’s sex life that the world had ever seen, so much so that newspapers and cable news shows struggled to find ways to report its contents. Gleeful Republicans, sensing political opportunity, declared Clinton morally unfit for the presidency and moved to impeach him
It didn’t work. Not only was the public more interested in the booming economy than in Clinton’s sexual practices, but high-profile Clinton critics kept getting caught cheating on their spouses. Three House Republicans—including leading abortion opponent Congressman Henry Hyde—admitted infidelity shortly before the 1998 midterm elections. Defying history, Democrats gained House seats. Speaker Newt Gingrich, whose adultery during his first marriage had been reported a decade earlier in Mother Jones, lost party support and resigned. (Gingrich was cheating on his second wife during the Starr investigation, but that would not be publicly known until 1999.) Then the person tapped to replace Gingrich, Congressman Bob Livingston, was exposed as an adulterer and resigned. Republicans next turned to Denny Hastert to be Speaker. Hastert would years later be exposed as a former child molester and sent to prison in connection with hush-money payments. At the time, though, the mild-mannered Hastert seemed a decent enough sort. Republicans proceeded with impeachment, but they failed to convict Clinton.
In 2000, Republicans nominated George W. Bush as a moral palette cleanser. The worst thing voters learned about the Texas governor was that (according to a Talk magazine profile by, of all people, Tucker Carlson), he’d mocked pleas for clemency from a murderer on death row (“Please don’t kill me”). George Will was appalled, but the story didn’t gain much traction outside the Beltway. Bush leaned heavily on his Christian faith to win conservative support—when asked in the primary who his favorite political philosopher was, Bush famously answered “Jesus.” And during his presidency, his top political aide Karl Rove eagerly waged culture war by spearheading a slew of successful state ballot initiatives in 2004 banning same-sex marriages. Also in Bush’s first term he signed into law the Partial-Birth Abortion Ban Act of 2003, which attracted some Democratic support in Congress, dividing Democrats on an issue central to their own base. He also threw up some roadblocks to the use of discarded embryos in stem cell research.
But these Republican culture war victories were ephemeral, and limited. Support for gay rights grew rapidly after 2004, driven by younger voters; by 2015, the Supreme Court could extend constitutional protection to same-sex marriage with barely any backlash. In Bush’s second term, he went against public opinion and pandered to social conservatives by temporarily interfering in the case of Terri Schiavo, a woman in a persistent vegetative state whose husband determined she would not have wanted any more life support. Meanwhile, Bush’s record on domestic and foreign policy was abysmal, making cultural issues largely irrelevant to the 2006 midterm and the 2008 presidential elections, which were won by Democrats.
Barack Obama was the Democrats’ moral palette cleanser: a loving father and faithful husband on top of being a historic figure. When it was time to decide who was best to succeed Obama, Republicans deemed it no longer necessary to choose a nominee who represented family values, and picked a boorish, thrice-married philanderer accused by multiple women of sexual misconduct. Even leaked video of Donald Trump boasting about forcing himself on women (“grab them by the pussy”) could not dissuade so-called social conservatives from supporting him.
Paradoxically, the Republican turn away from morally upstanding leaders was accompanied by a tighter embrace of the culture war. But instead of claiming to nurture a virtuous society through moral leadership, Trump bases his culture war on fear-based, reactionary self-interest. Transgender protections are characterized (inaccurately) as bad because girls won’t be able to compete in high school and college sports. Critical Race Theory is maligned because it will make white kids hate themselves. The culture war battle against Covid-19 vaccination runs quite counter to Trump’s boast that the vaccine was developed on his watch, but he doesn’t dare challenge it because it’s largely inspired by his downplaying the crisis, refusing to wear a mask, and picking fights with Anthony Fauci.
Trump was able just barely to win his culture war battle in 2016, but could not sustain it for the 2018 midterm or the 2020 presidential election. Conservatives for decades smeared Hillary Clinton as corrupt and evil. But Joe Biden met little resistance following in Obama’s footsteps as a morally upstanding standard bearer, drawing a clear contrast with Trump.
Election data analysts such as David Shor have noted Trump counter-intuitively helped Republicans make some inroads with African-Americans and Latinos because, in Shor’s words, “he just personally embodies this large cultural divide between cosmopolitan college-educated voters and a large portion of non-college-educated voters,” which somewhat transcends race. Yet Trump’s culture war gains couldn’t offset his losses. That’s why Democrats run Washington today.
Hershman pinpointed the blatant hypocrisy of Starr, noting that “his 1998 pursuit of former president Clinton over his sexual relationship with a White House intern … was bookended by his recent impeachment foray, this time defending an adulterous President, who lies about so much more sin than that.” Starr’s defense during Trump’s first impeachment did not lack for chutzpah, complaining, “the Senate is being called to sit as the high court of impeachment all too frequently. Indeed, we are living in what I think can aptly be described as the Age of Impeachment.” The only president ever to be impeached besides Andrew Johnson was Bill Clinton, which would not have happened without Starr’s politically-motivated investigation.
Hershman writes that she broke her silence when she realized that “Starr has been at the intersection of so many wrong turns our country has made.” She notes his cameo roles in the Brett Kavanaugh confirmation, the Jeffrey Epstein case, and the 2016 Baylor University football team rape scandal. Also of note is Starr’s ultimately futile effort to keep gay marriage illegal in California.
Trump has far more to do with the state of today’s Republican Party than Starr, but Starr was a trailblazing phony moralist in the post-Reagan culture war, a man who hated adultery and sexual misconduct only when it served his political purposes.
Of course, Trump won once, and in the right circumstances, he or someone like him could win again. But it’s hard to fight a culture war with such defective cultural warriors. When you lack a persuasive vision of a virtuous society, all you have left is self-interest. Hershman finally had enough. Perhaps others will, too.
–Fox News host Chris Wallace calls out the biased reporting about the Mueller report taking place on Fox News during a Fox News broadcast with Shepard Smith
Special Counsel Bob Mueller has two pathways to proceed against President Trump if he uncovers serious wrongdoing by the President, former independent counsel Ken Starr told VICE News.
Mueller can either refer his findings to Congress for impeachment — as Starr did with former President Bill Clinton in 1998. Or Mueller can wait for Trump’s presidency to end, and indict Trump afterwards, Starr said.
Starr said he believes that the law does permit a sitting president to face a criminal indictment. But longstanding DOJ policy against charging a sitting president will keep Mueller from charging Trump while in office, Starr predicted — no matter what the special counsel’s investigation into Trump’s links to Russia finds.
Unlike many observers, Starr himself has real-world experience in making such decisions. In 1998, he sent an explosive report to Congress, dubbed the Starr Report, that laid out 11 “grounds” for impeaching Clinton, including perjury, obstruction of justice, witness-tampering and abuse of power.
The implication was that the court of public opinion is trying not Brett Kavanaugh but the very idea of the All-American boy—good-natured, mischievous, but harmless. That Brett Kavanaugh was a decent kid who may have erred here and there but only did so in good fun, and that investigating the allegations levelled by Ford, Deborah Ramirez, and Julie Swetnick in earnest would amount to marching Tom Sawyer, Opie Taylor, and the Beaver single-file to the guillotine.
.. This was what moved Senators John Cornyn and Ben Sasse to seemingly genuine tears during Kavanaugh’s testimony. But it was Lindsey Graham who went apoplectic. “What you want to do is destroy this guy’s life, hold this seat open, and hope you win in 2020,” he shouted at Democrats during his turn for questions. “This is the most unethical sham since I’ve been in politics.”
“Boy, y’all want power,” he continued. “God, I hope you never get it.”
.. The Kavanaugh nomination is now, in part, a referendum on the #MeToomovement—on whether the goodness of successful men, with families and the respect of their peers, should be taken for granted, and whether the women who have suffered abuse, but who don’t possess the kind of evidence a prosecutor might find satisfying, should remain silent and invisible lest they sully sterling reputations.
.. Kavanaugh—by appearing in a prime-time TV interview, and in casting the accusations, incredibly, as a conspiracy against him orchestrated by allies of the Clintons—has shown himself to be exactly the political operative he was when he was working under Ken Starr and as a hired gun for the Bush Administration.
.. He is, backed into a corner and stripped of his robes, the quintessential Fox News man—both gladiator and perpetual victim, another “white male,” as Graham called himself on Friday, told to shut up and go away by feminists and a vindictive left.
.. Belligerent, wounded, proud, timorous, and entitled—a man given to gaslighting and dissembling under pressure.
.. Should he be confirmed, he will have the power to color rulings from the highest court in the land with the biases and emotionality he has revealed this past week until, if he so chooses, he drops dead.
.. Conspiracy theories about Kavanaugh’s accusers—that Ramirez was an agent of George Soros, for instance, or that Kavanaugh’s mother, a district-court judge, had ruled against Ford’s parents in a foreclosure case—were offered not only by the likes of the Daily Caller and Trumpists at the site Big League Politics this week but also by the NeverTrumper Erick Erickson, who has called Ford a “partisan hack,” and a reporter for National Review.
.. It was Ed Whelan—who heads something called the Ethics and Public Policy Center and is a man Washington conservatives consider “a sober-minded straight shooter,” according to Politico—who potentially defamed a Georgetown Prep alumnus with unfounded speculation about a Kavanaugh “doppelgänger,” a theory that could have originated on the right-wing message boards that birthed Pizzagate and are now fuelling QAnon.
.. The kind of discrediting rhetoric that was deployed by supporters of Trump and Roy Moore in the wake of allegations against them—that the charges had come after too many years, that the women bear blame or should be regarded skeptically for being in situations in which abuse might take place—was let loose by respected figures like the National Review editor, Rich Lowry. “Why,” he asked, of Swetnick, on Wednesday, “would she constantly attend parties where she believed girls were being gang-raped?”
.. And the Times’Bari Weiss and the former Bush Administration press secretary Ari Fleischer, both on the center-right, were among those who suggested that Kavanaugh should be advanced even if the allegations levelled by Ford are true.
.. It is often argued by this crowd that broad criticisms of the right risk pushing sensible conservatives toward Trumpism. But the events of the past two weeks have made plain just how illusory and superficial the differences between the respectable establishment and the Trumpists really are.
.. it cannot be said now, as it was in November, 2016, that the man in question is the best or only option for those committed to conservative policy objectives. Backing Brett Kavanaugh is a choice conservatives have made over viable alternatives—qualified conservative candidates who could be spirited through the nomination process before November’s elections or in the lame-duck session by a Republican Senate that has already proved itself capable of sidestepping the required procedural hurdles.
They have chosen this course because the Kavanaugh nomination has presented the movement with a golden opportunity to accomplish two things more valuable, evidently, than merely placing another conservative on the court: standing against the new culture of accountability for sexual abuse and, at least as important, thumbing their noses at an angry and despairing Democratic Party.
if a Democratic takeover of the House is to be avoided, the GOP desperately needs the voters who reluctantly pulled the lever for Trump only because he was not Hillary Clinton.
.. You may notice that Mrs. Clinton is not on the ballot this time. Meanwhile, in just the last few days, the president has attacked his attorney general yet again, this time for prosecuting two allegedly corrupt Republican congressmen and thus refusing to politicize the Justice Department; he has conflated himself with the country in absurdly suggesting that an anonymous derogatory op-ed by an administration official might amount to “TREASON,” such that the New York Times should “turn [the author] over to the government at once” for the sake of “National Security”
.. It’s about the Presidency, Not the President
More to the point, these derelictions — the president’s self-supplied fuel for the media narrative of an unhinged chief executive — make it politically risky for Republicans to defend the presidency by defending the president from what appears to be an unwarranted investigation.
.. To be clear, if there is probable cause to believe that Donald Trump was criminally complicit in Russia’s interference in the 2016 election, he must be investigated, and the nation must resign itself to the compromised administration that entails. But we have never been told, much less shown, that this is the case. It is supposed to be established before the investigation commences.
.. administration officials have had to go into their own pockets, paying millions in legal fees to defend themselves and comply with the special counsel’s demands
.. the signal has gone out to the meritorious people we should want to serve in future administrations: Why leave your prestigious, profitable job to serve in government and risk financial and reputational ruin?
.. 1. Rectitude
Mueller’s personal rectitude would be irrelevant. If he or you don’t think so, go ask Ken Starr. In any event, a prosecutor’s personal integrity is never dispositive when he or she commences an investigation, seeks a warrant, or tries an accused. What matters is whether the laws and rules have been satisfied.
2. Special Counsel Neither Necessary Nor Authorized for Investigation of Russia
If the president were a Democrat, it would be pointed out that to question the special counsel’s criminal investigation of the president is not to question the FBI’s counterintelligence investigation of Russia’s interference in the 2016 election. The latter is vital. No one denies that it should be aggressively pursued to its conclusion.
Moreover, if the counterintelligence investigation were incidentally to turn up concrete evidence that Donald Trump had committed a crime, no one denies that a special counsel appointment would be appropriate at that time. (Get it? Evidence of crime first, then assignment of prosecutor.) But unless and until that were to happen, a counterintelligence investigation does not need a prosecutor at all, much less a special counsel. That is why the aforementioned special-counsel regulations do not authorize an appointment for counterintelligence cases.
.. 3. Conflict of Interest
It is a condition precedent to the appointment of a special counsel that there be a conflict of interest. There is no such conflict preventing the Justice Department from investigating Russian interference in the election. If that were not obvious enough, Mueller himself has elucidated the point by transferring the two indictments he has brought against Russian operatives to Justice Department components — the “Troll Farm” case to the U.S. attorney’s office in the District of Columbia, and the hacking case to Main Justice’s National Security Division. If there were a conflict of interest, it would be inappropriate for the special counsel to make such transfers.
.. But while we’re on the subject of conflicts . . . let’s have a brief look at Mueller’s staff.
.. Of course, for the sake of his own credibility, Mueller is foolish to have stacked his staff with partisans. (Please, spare me the blather about how the Justice Department is not allowed to inquire about party affiliation when hiring. These are not obscure lawyers who applied for a job; they are well-known lawyers whom Mueller recruited into a hyperpolitical case, fully aware that they are activist Democrats.) But there is foolish, and then there is disqualifying. Being a Democrat is not disqualifying.
.. So whom does he turn around and recruit? Well, his chief deputy is Andrew Weissman, and his main legal beagle is Michael Dreeben. They were two of the top officials at the purportedly conflicted DOJ — respectively, chief of the criminal-fraud section and deputy solicitor general. Before her stint as Hillary Clinton’s lawyer, Jeannie Rhee was DOJ’s deputy assistant attorney general. She, like several other members of Mueller’s bloated staff, comes to the task of investigating the president either directly from the purportedly conflicted Justice Department or after a brief stint in private practice.
.. In any proper special-counsel investigation, it would be worth asking why, if the Justice Department is too conflicted to handle the case, its top officials are an ethical fit to staff the case. In this particular investigation, however, the actions of the Justice Department (and the FBI)
.. Weissman’s adulation of former acting attorney general Sally Yates for insubordinately defying the president on an enforcement matter, is it not worth asking why Attorney General Jeff Sessions had to recuse himself but Weissman gets to run the investigation?
.. If a Democrat were in the White House, it wouldn’t happen. Because if a Democrat were in the White House, and Weissman & Co. were Republicans transferred over from the Republican DOJ now under investigation, congressional Democrats would be screaming that there was no conflict of interest warranting the appointment of a special counsel, and that the only apparent conflict involved the prosecutors. And Republicans sages would be meekly agreeing — as would I (less meekly, I hope).
.. There is one thing and one thing alone that would justify the appointment of a special counsel: concrete evidence that Donald Trump committed a crime in connection with Russia’s election interference. So, to repeat: For precisely what federal crime is the president of the United States under investigation?
.. Trump and his allies are now racing to undermine the legitimacy of Mueller’s investigation in the hope of muting the impact of its results. The longer the investigation takes, the more successful Trump’s campaign is likely to be. Mueller, therefore, would be well advised to weigh the burden of the time-consuming and distracting litigation that Trump would launch to block a subpoena against the limited value of Trump’s testimony and move on.
.. Clinton resisted sitting down with Ken Starr until the independent counsel obtained a subpoena. They then negotiated to allow Clinton to testify for four hours from the White House with his lawyer present and the grand jury connected by video.
.. Prior presidents also feared the political damage from appearing uncooperative with law enforcement. Trump has worked furiously to build political support for his resistance to cooperation and appears confident that his base and core supporters in Congress will insulate him from political consequences.
.. Mueller—because of the importance of obtaining spontaneous answers, asking follow-up questions and observing the witness’s demeanor—will not agree to anything less than live questioning.
.. Moreover, the precedent set by issuing a subpoena could be abused by less scrupulous prosecutors than Mueller to sully a president for political purposes.
.. Trump will respond to a grand jury subpoena with a protracted legal challenge that will go to the Supreme Court. At the very least, he is likely to challenge the constitutionality of the special counsel’s appointment; argue that Mueller has exceeded his authority by investigating tangential matters; urge the court to impose limits on the scope, time, place and manner of the questioning; and contend that much of the information the grand jury will seek is covered by executive privilege. Mueller is likely to prevail, but victory will take time and distract his team from wrapping up the investigation, while giving Trump endless opportunities to denounce the “witch hunt.”
.. Although taking the Fifth could be politically embarrassing, grand jury secrecy might prevent the public from learning of it.