One of the more compelling moments in the Trump impeachment proceedings was Monday’s defence statement by former Solicitor General and federal Court of Appeals judge, Ken Starr. That is Ken Starr, the court-appointed special prosecutor who investigated former President Bill Clinton when he was in office, and whose report provided the basis for the unsuccessful attempt to impeach him.
Starr’s role in the current trial – for which he is perhaps uniquely qualified – was to provide a judicial historical perspective.
Nearing the end of what, in less partisan circumstances, would be termed a long and distinguished career, his presentation was more academic colloquium than rigorous interrogation of the facts. One might almost think that he sees his role as an officer of the court, rather than an advocate.
The task he sets himself is to challenge the spirit of the age – the age of impeachment. His thesis is that since Watergate in 1974, a remedy of last resort has become a first choice political weapon, with grave harm to national governance resulting.
He starts from the proposition that the drafters of the constitution enshrined impeachment as a judicial remedy to deal with the harm of criminal activity in a political context.
Given the inescapably political character of impeachment, his reading of history (of which he was a part) is that at least three elements are necessary for it to be widely accepted as legitimate.
The first is some element of bipartisanship, in both impeachment by the House of Representatives and trial by the Senate (indeed the requirement of two-thirds of senators voting to convict makes it essential).
The second is that the impeachable activity be criminal – although this is merely necessary and not sufficient. He instances the Clinton impeachment: “ … while highly relevant, the commission of a crime is by no means sufficient to warrant the removal of our duly elected president.”
Constitutionally there is no requirement for a specific criminal act to be proved, but Starr is talking here about the circumstances necessary to elevate political disagreement into overturning an election.
The third element is due process. Starr sees the necessity of established procedure to avoid the trivialization and criminalisation of inter-governmental disputes. Where executive privilege arguments can, they should be, resolved by the courts. Conversely a president following the advice of the Justice Department does not meet the bar of an impeachable offence.
One can quibble with Starr’s recounting of the factors above, with the importance he attaches to them and the conclusions he comes to. But it’s hard to avoid the more general conclusion that a political act needs to be out of the normal run of events, yet sufficiently recognisable by precedent, to be impeachable, and that the political context will always affect this judgment. This certainly seems to have been the case in both the Nixon and Clinton cases.
The Democratic party politicians in the House who brought impeachment proceedings are not short of historical advisers so presumably will have considered the same precedents. What does this say for their decision to impeach?
Pushing on with an impeachment which is unusually partisan by historical standards suggests more concern with reinforcing the opinion of those who think President Trump is disgraceful and enhancing intra-party agreement, than convincing those who prefer not to have an opinion. The one thing that Starr and the Democratic prosecutors probably agree on is that the final verdict will be rendered by the voters in November 2020. Starr’s historical analysis argues that this impeachment risks the same ending as the Clinton one: failing to convince both senators and middle-of-the-road voters (in that case, that making false statements under oath justified vacating the presidency).
And what of Starr himself, the judicial wunderkind, widely tipped for the US Supreme Court before being consumed by the age of impeachment. He was passed over in favour of more emollient Republican supreme court choices, who in turn have voted with Democratic appointees rather more often than the favour has been returned. But the Republican party seems to have learned from this experience – witness the 2018 appointment to the court of Brett Kavanaugh. He was Starr’s assistant in the Clinton inquiry.