On Monday, President Donald Trump’s impeachment trial defense got underway in earnest with a presentation from former independent counsel Kenneth Starr, now acting as one of Trump’s defense attorneys.
Starr is, unquestionably, an expert on impeachment. He is most famous for having investigated Bill Clinton and issuing a report listing 11 possible grounds for impeaching and removing the president based on his actions in the Monica Lewinsky affair. On Monday, though, his job was to argue that Trump should not be impeached and removed from office for the charge that he attempted to extort a foreign ally into announcing politically useful investigations into rivals and blocked all efforts by Congress to look into the case.
How did Starr attempt to resolve the contradiction of having supported impeachment in the case of Clinton and opposing it now in the case of Trump? He didn’t! The face of petty, partisan impeachment simply declared that, unfortunately, impeachments have become too common in recent decades, that the process has become too partisan, and that the House Judiciary Committee was right in 1998 to have rejected one of the planks for impeachment he had advocated for.
In short, it was one of the baldest displays of legal chutzpah in the history of our nation.
Here are the key elements of what Starr argued on Monday, and how it contradicts his past approach to impeachment.
• First, Starr said that impeachments have happened too frequently in the post-Watergate era, citing the Iran-Contra scandal and the impeachment effort he personally led. “How did we get here, with presidential impeachment invoked frequently in its inherently destabilizing as well as acrimonious way?” Starr intoned on Monday. How, indeed? He explained that past investigations—including his own—had led to a consensus that independent counsels—like Kenneth Starr—had gone too far and that their power should be curbed. “The acrimony surrounding Iran-Contra and then the impeachment and trial, and President Clinton’s acquittal by this body, led inexorably to the end of the independent counsel era,” Starr said. “Enough was enough.”
• Second, Starr, who led an effort to impeach Clinton that was opposed by a large majority of the country, said that impeachment—which has majority support in this case according to recent polling—had become too partisan. Repeatedly citing the experience of people who “lived through the Clinton impeachment,” the architect of the Clinton impeachment argued that “presidential impeachment has become a weapon to be wielded against one’s political opponent.” Starr, who was heavily criticized at the time for weaponizing his investigative powers in the Whitewater case to examine Clinton’s personal sexual misconduct, continued: “Here I respectfully submit to the court that all fair-minded persons will surely agree, there is no national consensus” to impeach and remove Trump. He then noted the fact that no Republican in the House voted for impeachment, neglecting to mention that one Republican, Rep. Justin Amash, quit the party and became an independent because of his caucus’s lockstep loyalty to Trump. “Impeachment must be bipartisan in nature,” Starr said. “Sitting as a court, this body should signal to the nation the return to our traditions, bipartisan impeachments.” Starr also failed to mention that the bipartisanship in 1998 consisted of only five Democrats in the House voting to impeach Clinton—while five Republicans and one independent voted against impeachment.
• Third, Starr argued that at least in his effort to impeach Clinton, there had been crimes alleged and proven—perjury about extramarital affairs in a civil lawsuit and obstruction of justice as part of an effort to cover up extramarital affairs. “The nation’s most recent experience, the Clinton impeachment, even though severely and roundly criticized, charged crimes,” Starr noted. He didn’t mention that the Judiciary Committee report on Trump’s impeachment alleged that Trump’s actions toward Ukraine had met the criminal definitions of bribery and honest services fraud violations, and that the Government Accountability Office had found Trump’s decision to withhold aid to Ukraine a violation of the law. Starr also neglected to mention that his 11 potential grounds for impeaching Clinton included things that were notably not criminal, such as Clinton lying to the public about his affair with Lewinsky.
• Fourth, Starr argued that Trump should not be impeached and removed now, pointing to a 1999 Hofstra Law Review article by Yale Law professor Akhil Amar: “Impeachment and removal not only overturns a national election and perhaps profoundly affects an upcoming election, in the words of Yale’s Akhil Amar … [it causes a] ‘grave disruption of the government,’ ” Starr said. “Professor Amar penned those words in connection with the Clinton impeachment. ‘Grave disruption of the government,’ regardless of what the president has done, ‘grave disruption.’ ” Here, Starr was explicitly citing the opposition to his own 1998 impeachment campaign to argue against removing Trump. He did not explain why he didn’t mind disrupting the political system or overturning the results of an election when he recommended impeachment in 1998.
• Fifth and finally, Starr told the Senate he was wrong in 1998 to have called for impeachment for Clinton’s abuse of executive privilege and efforts to obstruct Congress, saying that even though he was right on the merits of Clinton’s obstruction, the House Judiciary Committee was correct not to have taken his own recommendation. “History once again is a great teacher. In the Clinton impeachment, the House Judiciary Committee rejected a draft article asserting that President Clinton fraudulently and corruptly asserted executive privilege,” Starr said. “In my view, having lived through the facts, and with all due respect to the former president, he did! He did it time and again, month after month. We would go to court, we would win. But at the end of the day, that committee, chaired—the Judiciary Committee of the House, chaired by Henry Hyde, wisely concluded that President Clinton’s doing so should not be considered an impeachable offense.”
Here’s what Starr wrote about Clinton’s obstruction efforts in 1998: “The president repeatedly and unlawfully invoked the executive privilege to conceal evidence of his personal misconduct from the grand jury.” He added: “By publicly and emphatically stating in January 1998 that ‘I did not have sexual relations with that woman’ and these ‘allegations are false,’ the President also effectively delayed a possible congressional inquiry, and then he further delayed it by asserting Executive Privilege and refusing to testify for six months during the Independent Counsel investigation. This represents substantial and credible information that may constitute grounds for impeachment.” Finally, “President Clinton abused his constitutional authority by … refusing six invitations to testify voluntarily to the grand jury; [and by] invoking Executive Privilege.”
Trump has not even bothered to invoke executive privilege in his unprecedented all-out blockade of all subpoenas in Congress’ impeachment inquiry, and he refused flatly to testify voluntarily as part of special counsel Robert Mueller’s investigation. This is not enough for Starr to make the same recommendation he did two decades ago.
Despite the gentle, unctuous cadence of his remarks, it was impossible, watching Kenneth Starr hold forth on the wrongness of Kenneth Starr’s own theories of impeachment, to believe he was there to do any sort of legal persuasion. Trump’s acquittal, according to plan, will be a triumph of the power of shamelessness. The real defense was in the hypocrisy and absurdity of Starr being there at all.