The parallels are remarkable. Twenty years ago this month, a special prosecutor investigating the president was weeks away from releasing a report accusing the chief executive of illegal conduct unrelated to his official duties. Three months later, Bill Clinton was impeached by the House of Representatives on charges of lying and obstructing justice to hide a extramarital affair from his wife and the country. While this may have meant he lost a battle, there is no question that Clinton ultimately won the war against independent counsel Ken Starr by not only surviving but continuing on to complete an otherwise successful presidency.
Today, President Trump is not only following Clinton’s playbook to a tee, he stands a good chance of winning his war of words against an opponent who remains unable to fight back. Just as we are seeing with the ongoing Russia probe, Starr’s original investigation started specific and broadened over time. In Starr’s case, his 1994 appointment was to investigate potential violations of criminal law relating to Bill and Hillary Clinton’s involvement in the “Whitewater” land deal. Four years and $50 millionlater, Starr’s most impactful findings involved Clinton’s affair with a White House intern and his lying about it under oath.
Robert Mueller’s original mandate was also narrow. He was appointed to find evidence of “any links and/or coordination” between the Russian government and individuals associated with the Trump campaign. Fifteen months and more than $16 million later, it is impossible to know when and how the probe will conclude. However, the conviction of former Trump campaign manager Paul Manafort and the guilty plea of former Trump attorney Michael Cohen on grounds entirely unrelated to Russia mirror how Starr’s investigation also morphed into altogether new areas.
What is also being mirrored is how Trump is taking the fight with Mueller in the court of public opinion. At some point, Clinton decided that rather than wait until Starr completed his investigation, he would step up and fight on his own terms. Lacking the benefit of a Twitter account, Clinton used surrogates who repeatedly attacked Starr as a highly partisan Republican operative obsessed with bringing down Clinton. Starr was accused of being fixated on sex, and being a runaway Inspector Javert who spent years and millions of dollars on a wasted effort. In the reported words of a Clinton White House official, the attacks were “part of our continuing strategy to destroy Ken Starr.”
Sound familiar? Trump’s initial legal team seemed content to remain under the radar and keep public comments to a minimum. All this changed with the hiring of Rudy Giuliani, who has relentlessly attacked the Russia investigation as a runaway train with no end in sight. Combine this with Trump’s constant tweets describing Mueller’s probe as a “witch hunt” staffed with Democratic partisans and tainted by Mueller’s own undefined conflicts of interest. Trump has also criticized how long the investigation is taking and how much it has cost.
This is because Trump and his attorneys know that his fate will depend not on the legal intricacies of campaign finance laws or whether “collusion” constitutes a crime. This is a political battle that potentially leads to impeachment, and Trump is fighting not on the legal issues but over what it would take for Congress and his supporters to turn on him.
After years of investigating President Clinton the best Starr could come up with was that he lied about a personal relationship. To anyone paying attention this did not come as a surprise. Allegations of marital infidelityhad swirled around Clinton prior to his first presidential run, yet voters twice elected him because he was considered a successful leader. Democrats in Congress uniformly voted against ousting Clinton because they felt Starr uncovered nothing that warranted removal. The fact that Starr had been damaged from years of pummeling ensured the Democrats would receive no repercussions for their votes.
Today, if Mueller’s findings simply reinforce what voters already knew about Trump, such as that he is fast and loose with the truth, has surrounded himself with questionable characters, and openly invited Russians to find and release Hillary Clinton’s deleted emails, it likely will not be enough to turn public opinion against him. Trump’s team will thus continue to attack the prosecutors and attack the process in an effort to undermine whatever Mueller ultimately finds. The special counsel will be accused of bias, of mission creep, and of doing whatever it takes to reverse the results of the 2016 election.
Meanwhile, the bar will keep getting raised as to what would justify removal of a president. Is it unseemly and highly inappropriate for a president to smear the prosecutors who have been duly tasked with investigating him? Sure. But it worked before with Bill Clinton, so it is not crazy to imagine that it just might work again.
Joseph Moreno is a former federal national security prosecutor with theU.S. Department of Justice and a former staff member to the FBI 9/11 Review Commission. He is now a white collar litigation partner atCadwalader Wickersham & Taft. He is on Twitter @JosephMoreno.