Bill Whitaker: Ken Starr, our man at the impeachment trial

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Several months ago, I fielded several calls and emails expressing outrage that Waco-based Ken Starr — former federal judge, former U.S. solicitor general, former law professor and the famous independent counsel whose wide-ranging, four-year investigation into real estate and sex more than two decades ago threatened to topple a Democratic president involved in a White House tryst — had himself in 2007 helped jet-setting financier and sexual predator Jeffrey Epstein largely elude stern American justice. All bubbled up from the political and societal swamp last summer when Epstein was nabbed on sex-trafficking charges amidst our swelling, long-overdue #MeToo era.

Besides being my friend, Judge Starr serves as a cherished member of the Waco Tribune-Herald Board of Contributors. I have learned much from his expansive legal insights, even if we vigorously disagree over the Constitution, including the dangers of an imperial presidency and a federal judiciary fast sinking into partisan muck already corrupting Congress and the presidency. (Starr, for the record, is less convinced of this than I am.) During our second meeting on occasion of Starr’s inauguration as Baylor University president in 2010, he quizzed me on what Ben Franklin told Elizabeth Powel when she asked the 81-year-old wit, journalist, diplomat and patriot what the constitutional convention of 1787 had produced, a republic or a monarchy. The judge was startled I knew the answer: “A republic, if you can keep it.”

And at a spirited symposium at Baylor Law School honoring late Supreme Court Justice Antonin Scalia in 2016, Starr graciously (and inaccurately) compared my writing to that of the eminent, word-prudent conservative justice in his court decisions, an estimation that no doubt has Scalia spinning madly in his grave. It was during this event that Starr and some Baylor law professors, to my question about the Senate’s unprecedented refusal to consider the Supreme Court nomination of Merrick Garland by President Obama to succeed Scalia, answered that the Senate’s inaction was not necessarily unconstitutional but it certainly was not constitutional. Such are the niceties that confound and frustrate the everyday, ordinary citizen, leaving some convinced that grasping the full meaning of founding documents is akin to grasping air.

Explaining our wonderfully sober and sensible system of law and order to readers understandably outraged over another symbol of our nation’s moral decline — I refer to Epstein and his prostitution and plundering of underage girls — is never easy. Our system of justice may be imperfect, but it’s superior to others, ensuring that every defendant, no matter how disreputable, no matter how damning the charges, has a competent defense. Otherwise our society quickly descends into little more than court-ordained lynching. True, high-dollar clients get high-dollar lawyers, but that’s a problem of America’s growing inequality gap as much as American justice. And so I explained to callers and correspondents rankled about Judge Starr last summer.

Yet few Wacoans have expressed outrage over Judge Starr’s defending President Trump of two impeachment articles. And this contest went to the very heart of the Constitution that Starr and I so revere. It highlights a presidential administration unprecedented in its recklessness that has battered not only presidential norms going back to George Washington but also our brittle system of checks and balances that separates the United States from democratic pretenders. The Trump White House may well have imagined Starr’s enlistment bolstered suggestions that he, after all, knows a thing or two about legitimate impeachments — and that this did not rise to the level of the impeachment saga targeting President Bill Clinton.

Credit the local silence over Judge Starr to the fact that what was once “Bush Country” — brimming with the compassionate conservatism of a Republican president who spent much time at his ranch just outside town — has rapidly mutated into Trump’s flyover country, complete with a virulent political strain less compassionate and only vaguely conservative, where citizens quietly wonder about the patriotism and sanity of one another based on fealty to President Trump. Then again, the relative quiet over Starr’s impeachment trial cameo role may suggest something else.

The Trib editorial board is on record as agreeing with Starr’s initial suggestion — put forward in these pages on Sept. 25 — that formal censure of this president would have been preferable with a presidential election so near. To quote the former jurist and constitutional scholar, alluding respectfully to House Speaker Nancy Pelosi and to lawmakers contending with a rash and unruly president in another tumultuous century: “Her predecessor from long ago, Henry Clay, found a sensible middle course — the People’s House spoke its mind in a resolution of censure [of President Andrew Jackson], but in doing so did not embark on a mission nigh unto impossible — to seek to overturn the results of an honest and fair presidential election.”

Starr for the defense

Starr’s Sept. 25 argument is one to which I subscribe, though only to a point: Impeachment is inherently anti-democratic, which is why it should be reserved for extraordinarily grave breaches of ethics and law. But that’s also why so many pundits and politicians now accuse Starr of hypocrisy and why his name may come to define the word, deservedly or not. More than two decades ago, the mild-mannered independent counsel spent several years helping make possible the impeachment of a duly elected president involved in a tawdry White House fling — a sordid affair far removed from the questionable real-estate dealings that initially fueled the Starr investigation.

Alas, Starr last week stepped forward to defend a president accused of something far more serious and consequential than lying about a sexual dalliance: abusing a public trust in trying to coerce an imperiled foreign ally — and with hundreds of millions of dollars in taxpayer cash — to tilt an approaching U.S. presidential election in his favor. Republican lawmakers were in the dark about the Republican president’s misdeeds and expressed alarm upon discovering the congressionally approved aid had not been smartly delivered to Ukraine.

It didn’t help that Starr, 73, a Republican and (till recently) a Fox News analyst whose investigation in the 1990s aggressively targeted a Democrat, now urged restraint and kid gloves for a fellow Republican.

The Trump defense team’s claim that House charges against President Trump were a “brazen and unlawful attempt” to undermine his 2020 reelection is pretty rich, given mounting evidence from Soviet-born Rudy Giuliani stooge Lev Parnas and now former national security adviser John Bolton, long a favorite of the far right, that Trump was trying to do the very same thing last summer and got caught. And there’s the argument that the impeachment drive is part of an attempt to overturn the 2016 election — again pretty rich if you remember that, right up till Election Day 2016, candidate Donald Trump declared the election was “rigged” and he might not accept the election results, leaving open the possibility of civic unrest.

Age of Impeachment

Interestingly, Trump during that period did nothing to calm supporters including Milwaukee County Sheriff David Clarke, who called for “pitchforks and torches” if Trump lost. As the Boston Globe quoted one Trump supporter of a possible election loss in the perennial battleground state of Ohio: “There’s going to be a lot of bloodshed. But that’s what it’s going to take.”

Trump Impeachment

Constitutional scholar and former federal judge Ken Starr mounting his Jan. 27 defense of President Trump during the Senate impeachment trial: “Like war, impeachment is hell or, at least, presidential impeachment is hell.”

Yet Starr’s artful, often moving address in defense of President Trump before the Senate last week offered some inconvenient truths for House Democrats, including the fact some on Capitol Hill and beyond have been almost as reckless in calling for this president’s impeachment, well before his wildly inappropriate July 25 call to the Ukrainian president, even before the much-anticipated, slow-baking Mueller Report was issued. To quote Judge Starr in a soaring moment in the Senate: “In the House, resolution after resolution, month after month, has called for the president’s impeachment. How did we get here with presidential impeachment invoked frequently and its inherently destabilizing as well as acrimonious way?”

Unfortunately for Starr, he figures strongly in the regrettable answer.

The judge correctly laments what he says has steadily devolved into the “Age of Impeachment,” even as he awkwardly welcomes the 1999 death of the independent counsel statute under which he relentlessly dogged President Clinton over a multitude of ethical and legal sins and crimes, some well beyond the scope of what was envisioned: “But in the meantime, America’s constitutional DNA and its political culture had changed. Even with the dawn of the new century, the 21st century, impeachment remained on the lips of countless Americans and echoed frequently in the People’s House. The impeachment habit proved to be hard to kick.”

‘Lock her up!’

Judge Starr is right, though he’s a fine one to say so. Republicans who should have courageously reined in such impulses themselves stood mute during occasional calls to impeach or worse. Often they were complicit in whipping mobs into a frenzy. I sat in congressional town-hall meetings in Waco where an occasional constituent pressed for President Obama’s impeachment for such crimes as the Deferred Action for Childhood Arrivals (DACA), enacted through executive action. And to roaring laughter, the mayor of Moody announced during a McLennan County Republican Club luncheon in 2016 that he had been shocked to see a Hillary Clinton sign in his town of 1,300. Only after the homeowner mowed his lawn did he realize the sign declared: “Hillary for Prison.”

At another point, Judge Starr argued that the impeachment of a president is justified only when ultimately pursued in a bipartisan manner. Again, good point, except it raises questions about his own role as chief architect of the Clinton impeachment, which unfolded before a House and Senate anything but bipartisan. As my former Trib colleague Carlos Sanchez, a veteran newspaperman long of the Washington Post, wrote back when Starr arrived to serve as Baylor president in 2010, the impeachment of a Democratic president by Republicans in 1998-99 may well have fueled the political polarization that Starr today so deeply and so justifiably and so ironically laments. As Sanchez quoted Ken Gormley, the author of “The Death of American Virtue: Clinton vs. Starr,” a book published amidst Starr’s arrival in Waco: “I believe this whole moment in history was the beginning of a division in the country that hasn’t corrected itself yet. It was the beginning of red state versus blue state.”

Judge Starr’s argument before the Senate that no specific crimes are cited in the impeachment articles — and surely must be to be credible — might prove compelling except this president and all his men have argued on various occasions that this president is above the law, which logically and legally must imply he is liable for offenses that cannot be so readily committed by ordinary citizens, given they don’t hold such immense power. Abuse of power? Obstruction of Congress? No such laws? If the judge seeks a criminal code of presidential offenses, he must remember the greatest law book of all for Americans: his beloved Constitution. What is the recourse when a president runs counter to the checks and balances? Another election that he was already obviously trying to fix? Another call-out to foreign powers such as Russia to render his campaign aid and comfort?

Inconsistencies aside, Starr’s address with its slow-motion oratory and thought-provoking historical footnotes might have set a higher tone in the impeachment trial. The fact it didn’t is proof Starr was an anomaly in a Trumpian sideshow, trotted out for the amusement of the peanut gallery. Soon afterward, other defense lawyers proved they hadn’t been listening, setting out to complete the task Trump began last summer by pillaging the target of his skullduggery and even trying to impeach Obama post-presidency, the knee-jerk resort of Trump apologists when all else fails. No less than principled conservative editors of National Review lambasted Alan Dershowitz’s claim that a president can subvert the Constitution in various ways without violating criminal statutes.

Meanwhile, complications have piled up like rubble clogging a storm drain, including the nonpartisan Government Accountability Office’s buttoned-down determination that, well, yes, the president’s withholding congressionally approved funding is a violation of the law: “Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law.” And a Department of Justice attorney has now argued in court on a matter unrelated to impeachment that, well, no, Congress cannot use federal courts to enforce its subpoenas, which conflicts with what Trump defense lawyers insisted House Democrats should have done: take their spurned subpoenas for evidence and witnesses to federal court to decide on the subpoenas’ merits.

Monarchy or republic?

Judge Starr took some lumps for coming to Trump’s aid, which suggests his sincerity in all this. For its Page One, the New York Times dredged up the ugly Baylor University sexual-assault scandal over which Starr presided to his downfall in 2016, pitting some of his comments against a not-so-confidential Margolis Healy report regarding creaky Title IX protections for campus students. And old wounds among alumni and regents were reopened, as a Baylor professor emeritus conveyed to the Trib in a letter in defense of Starr, a popular president during his tenure: “He was one of the best presidents Baylor University ever had. The Board of Regents at Baylor should have all been fired and replaced with a reasonable-sized board serious about their positions and not reduced to a bunch of in-fighting politicians. One could liken them to Nancy Pelosi and her fellow hoodlums in Congress.”

Nor were pundits and politicians kind. Judy Woodruff, anchor and managing editor for the PBS NewsHour, tweeted: “Ken Starr says unlike judges, who serve for life, presidents are elected for a limited term, and should be less subject to impeachment. Did he make this argument during Clinton impeachment?” And the New Yorker highlighted the irony: “Kenneth Starr’s remarks at the Senate impeachment trial were a bizarre spectacle: the man who brought us the last impeachment and trial of a president lecturing the Senate on the dangerous evils of impeachment.” Another critic billed Starr and Dershowitz the “Abbott & Costello of Impeachment.”

Perhaps the unkindest cut came from right-wing media star Ann Coulter, who tweeted: “Ken Starr litigation strategy: Torture the senate with such an excruciatingly boring presentation that they cannot take another minute of this trial.” To which right-wing House Freedom Caucus thug Matt Gaetz tweeted: “This defense needs a little less Atticus Finch and a little more Miss Universe.” Which says more about the lack of intellect of Coulter and Gaetz than it does Starr’s abilities as an attorney in the crucible of history.

In the end, Judge Starr’s arguments for the defense were edifying, dignified, even eloquent, yet relentlessly confounding given the disorienting truth-isn’t-truth context of the moment, conjuring up for constitutionally astute citizens Mrs. Powel’s question more than Dr. Franklin’s answer in 1787. The fact that Mitt Romney, the Republican presidential candidate of 2012, suddenly found himself a pariah in his own party for voting to convict Trump this week while at the same time emerging as a study in “Profiles in Courage” alongside Edmund Ross in historical estimation certainly underlines Mrs. Powel’s inquiry. So do the thinly veiled threats of payback from a hate-filled, vengeance-seeking president recharged by an anemic, craven, avert-thy-eyes Senate. Indeed, by late Friday the White House purge had already begun with victims including Army Lt. Col. Alexander Vindman, the top Ukraine policy officer on the National Security Council, and his twin brother Yevgeny, who wasn’t even an impeachment witness. A presidential vendetta not only made a complete blasphemy of the National Prayer Breakfast but threatened significant consensus-building and constitutional governance. In short, Judge Starr was the wrong man at the wrong time defending the wrong president. His address reminds me of the apocryphal West Texas tale of the minister who gets lost on his way to a funeral and winds up preaching a barnstorming eulogy over the wrong remains. One is left impressed but dumbfounded.

When a neighbor of mine asked her son-in-law, an appellate lawyer, how on earth Judge Starr, so deeply respected as a constitutional scholar, so cognizant of history, could defend a potty-mouthed, two-faced charlatan infamous for constitutional transgressions given the likely judgment of almighty history, he gently lectured her: “That’s what good lawyers do, and Ken Starr is a good lawyer.”

“Well, I’m glad history’s not important to him,” she replied, “because Trump probably won’t pay him.”

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