by Ken Starr
I was pleasantly surprised by the number of fellow Disney World vacationers who came over to our Thanksgiving table, or to the buffet line at the Grand Floridian, to say hello and extend their warm wishes. Anonymity was now a thing of the past. In any event, at Disney World, no one cares. They’re having fun with their families, not looking around for newsmakers.
During that getaway, I began thinking anew about bringing my public service to a close. Sadly, the Pepperdine opportunity had gone away. My extended deadline of August 1998 to report for duty on America’s most gorgeous college campus had come and gone. Davenport, Pepperdine’s patient president, was obliged to move in a different direction, naming an interim dean of the law school. The missed Pepperdine opportunity represented a truly grievous loss. Miraculously, it would unexpectedly return. There would indeed be a second chance, thanks to the decision of Pepperdine’s new president, Andrew Benton, not to renew the contract of founding dean Ron Phillips’s successor. To Malibu I would go—five years later.
CHAPTER THIRTY-TWO
The House Votes to Impeach
For the rest of that long year, I followed the House impeachment proceedings on television and in the press.
I had no contact of any kind with House members. The ultimate question of presidential fitness to serve was now entrusted to the people’s elected representatives. But the Judiciary Committee did not have the benefit of our experience in the Little Rock phase of the investigation.
We believed the president had committed perjury both at the Whitewater trial and in several of his sworn interviews with our office. House Republicans were obviously disappointed that our referral was limited to the Lewinsky phase of our investigation, but we simply lacked what the independent counsel statute set forth as the standard: “substantial and credible” information that an impeachable offense may have been committed. Whatever our views might be on the president’s earlier acts of perjury, we did not believe we could meet the necessary benchmark.
We were cognizant of the frustrating difference for a prosecutor’s office between what they know, or at least believe, and what they can prove by admissible evidence beyond a reasonable doubt. Our duty was to remain silent, save for the final report when the OIC officially closed down its operation.
As the impeachment debates raged within the Judiciary Committee, and then on the House floor, I was reassured by the ready acceptance of the proposition that the president had committed serious crimes against our system of justice.
Chairman Hyde, in various ways, made the case that the issue implicated our foundational values of the rule of law, of basic honesty and integrity in the justice system.
At the same time, I despaired that the entire constellation of presidential crimes, coupled with the unleashing of Oval Office power to block and impede the investigation, was not widely perceived as an abuse of power.
The events that followed proved to be a tale of courage on the part of the Republican members of the committee. They knew full well that the American people strongly disfavored impeachment and removal of the deeply flawed but eminently likable president. Not only was he likable, he was teachable, as his midcourse policy adjustment during his first term of office demonstrated.
The postelection polls were crystal clear: Scuttle impeachment. Even with the temporary pro-impeachment bump during my daylong hearing, the American people at day’s end wanted stability and continuity.
They had drawn a line—lying versus encouraging others to lie—but that, too, was now blurred. Just forget the whole thing.
The vote in the Judiciary Committee proceeded entirely along partisan lines.
Of the four proposed articles of impeachment, the vote was 21–16 for impeachment on three counts; as to the fourth, which charged perjury in the Paula Jones case, the vote was 20–17. As to that count, Lindsey Graham of Peyton Place fame voted nay. Graham gave the president the benefit of the doubt due to what he, Graham, saw as a confusing definition of sexual relations fashioned by Judge Wright. That was generous of him. But even granting the point, there was no ambiguity infecting the grand jury’s definition.
The House pressed forward. I imagined what might have been if the Judiciary Committee hearings had taken place while Congress was in full session, rather than during the postelection rump session. The inside-the-Beltway political dynamic would perhaps have shifted sentiment to a no-vote position to reflect prevailing national sentiment.
But with the full House in recess, the Judiciary Committee members were entirely absorbed with the overwhelming body of evidence before them, not having to race from pillar to post in the usual manner of overly busy representatives.
Back home, the almost four hundred other House members could watch the proceedings at a safe distance and listen to their constituents up close.
And Republicans in particular typically got an earful from morally outraged folks back home. Committed Republicans, especially in heavily GOP districts, would not have looked kindly on their member of Congress waving a white flag of surrender and countenancing what was viewed in conservative ranks as profoundly unacceptable presidential misconduct.
Despite polls testing the general sentiment of the American people, impeachment was not a national plebiscite. Just as with the presidential election and the electoral college, the nation wasn’t voting. Instead, individual representatives of 435 widely varying districts, each with its own peculiarities, were the electors.
Ultimately, as the old saying goes, all politics is local. Especially on such a monumental question as continuing presidential tenure, members of Congress had to keep their fingers on the pulse of their districts, regardless of what CNN’s or other national polls might be reporting. And many districts all across the country were adamantly pro-impeachment.
Might something short of impeachment suffice? Constitutional scholars fretted that a resolution of censure, especially one coupled with a fine or other monetary sanction, might well be a constitutionally forbidden “bill of attainder,” that is, Congress singling out a named individual for punishment. The Constitution set forth a formal mechanism for dealing with presidential misconduct, and that was the route that must be followed.
I had a different view. As I interpreted our founding document, the specified removal procedure of impeachment was elaborately provided for, but there was no express or implied prohibition on employing, in Congress’s considered judgment, a less draconian procedure.
Imagine a situation in which, as with President Donald J. Trump, the chief executive engages in a pattern and practice of castigating and denigrating highly respected individuals.
The example of President Trump belittling Senator John McCain of Arizona springs to mind, or his alleged disparagement of immigrants from “shithole countries.” By my reading of the Constitution, nothing prevents one or both Houses from formally expressing their disapprobation of the president’s ill-mannered statements or inappropriate conduct through the mechanism of a resolution of censure.
In fact, the far less dramatic procedure of censure was once employed by Congress to express its vehement objection to the blatant lawlessness of President Andrew Jackson.
In the situation of President Clinton, a resolution of censure, possibly combined with a sanction, would likely have enjoyed overwhelming bipartisan support.
But even without a sanction, the censure resolution would simply express the views of the two houses of Congress. I saw nothing in the text, structure, or history of the Constitution to foreclose the resolution of censure alone, with no accompanying penalty. But no one asked me.
Constitutional issues aside, a stark political fact was this: Why would Republicans want to remove a popular lame-duck president, render him a martyr at the bloody hands of what would be assailed as right-wing zealotry, and then usher Vice President Al Gore into the Oval Office with less than two years remaining until the 2000 presidential election?
With the nation continuing to enjoy peace internationally and technology-driven prosperity here at home, newly installed President Gore would likely be a shoo-in for election in his own right. Electing the more stable, less controversial former senator from Tennessee would likewise serve as a form of vindication for the ousted President Clinton and reward the nation’s forty-second president with an informal “third term” of the Clinton-Gore administration.
All these calculations were doubtless on the minds of politicians and pundits across the country.
The vote in the House, held on December 19, exactly one month after my testimony before the Judiciary Committee, was not quite as close as I had expected. Thirty-one Democrats joined the almost unanimous ranks of Republicans in sending two articles of impeachment to the Senate for trial.
The first article—perjury in the grand jury—passed muster 228–206. The second article—obstruction of justice—garnered a much closer 221–212 vote. Along the way, the proposed article on abuse of power fell by the wayside.
The stage was set for the nation’s first impeachment trial in the Senate since the era of Andrew Johnson immediately after the Civil War.
CHAPTER THIRTY-THREE
The Senate Trial
Chief Justice William Rehnquist, bedecked in his odd Gilbert and Sullivan–inspired judicial robe, took the chair in the Senate on January 7, 1999, as the presiding officer in the first presidential impeachment since the 1860s.
I knew the brilliant but quirky Rehnquist well. He had been a judge for decades. He usually wore a sport coat and Hush Puppies, not a suit, beneath the robe.
His opening comment was entirely perfunctory. Nary a word about the gravity of the proceedings. Rehnquist blandly informed the House managers that they had twenty-four hours to present their case. For the rest of this historic proceeding, the Chief Justice presided but did not direct. He allowed the Senate to work its will. He later opined, “I did very little, and I did a good job of doing very little.”
From the get-go, the thirteen House impeachment managers found themselves in a hostile work environment. The Senate leadership would honor the House’s action only in the most formalistic way. There would be a “trial,” but no witnesses, a rather unorthodox approach to a trial—perhaps the first in the English-speaking world. But the Senate is the master of its own house.
Majority Leader Trent Lott, a grizzled politician from Mississippi, saw no future in going after the Comeback Kid. Clinton had weathered the storm in public opinion polls, the ultimate arbiter of important questions for career politicians like Lott. Their realpolitik task was to dispense with the mess as quickly as possible, with an eagle eye trained on the 2000 presidential election.
Even with their party’s standard-bearer under the dark cloud of impeachment, congressional Democrats were once again riding high. The House managers were the skunks at the garden party. Everyone promptly forgot about the thirty-one Democrats in the House who had joined in sending the articles of impeachment over to the Senate.
In response to an inquiry by Senator Tom Harkin, a Democrat from Iowa, Chief Justice Rehnquist ruled that the senators—although sworn in to judge the “grand inquest” of impeachment—were not limited in coming to their respective judgments to the evidence put in the record by the House managers. The senators were not jurors. To the contrary, their duty as statesmen transcended that of the American jury bound by the facts as adduced at trial and the law as instructed by the judge. They were, rather, to serve as representatives and voices of the people, now called upon to exercise the ultimate judgment of life or death of a particular presidency.
The Chief’s ruling was entirely correct. Elected in their respective states, senators were duty bound by their oaths to listen to what the House of Representatives, through the impeachment managers, had to say. But the senators could listen with stopped ears. All that was needed was for their warm bodies to be in their seats as the impeachment case unfolded and then to vote yay or nay.
The Rehnquist ruling was obviously unhelpful to the House managers. Rehnquist’s opinion “from the bench” took the senators totally off the evidentiary hook. They could, as a matter of principle, conclude that the president had committed perjury, encouraged others to lie, obstructed justice and all the rest, and still vote to acquit.
The trial promptly experienced hiccups.
First, the House managers wanted to take depositions of certain key witnesses. One might wonder, why didn’t they do that over on the House side during the impeachment inquiry? The managers wanted to call witnesses to testify at the trial. Ditto. They had allowed that chance to pass them by during the Judiciary Committee hearings. As a compromise, the Senate trial was adjourned to permit deposition testimony of a handful of witnesses, including Vernon Jordan, who had masterminded the job search for Monica.
Second, encouraged by the Clinton defense team, Senator Robert Byrd, the West Virginia Democrat, filed a motion to dismiss. This was a bold move, designed to cut the entire proceedings off and take the solons off the hook. If a supermajority to convict and remove the president was lacking, as it indeed was, why go through the motions of a trial?
But the Senate obviously felt bound to proceed to its inevitable conclusion. The vote was lopsidedly in favor of going forward: 56–44. One Democrat, Russ Feingold of Wisconsin, came across the aisle to vote with the Republicans. The proceeding would continue.
Faced with the prospect of a witness-free trial (or at least live testimony), and thus unable to create drama in the “courtroom,” the impeachment managers were determined to do everything they could to seek Monica’s “testimony.” That happens all the time in the real world. In the course of a civil trial, a court may call a recess or simply direct that a deposition be taken after court adjourns for the day or over a weekend.
The managers wanted to interview Monica. They assured her lawyers that it would be friendly, with no court reporters. She refused. Hyde called our office with the request that we direct Monica through her lawyers to do so.
This was so unwelcome by me and my colleagues as to defy description, though I empathized with the House managers. Under Senate procedures, they could call no witnesses to testify at the trial. I sensed that curiosity was playing no small part in the request to arrange for her interview.
The House already had access to the testimony from Monica’s appearance before the federal grand jury. She had held nothing back. She was not the typical 80-percent-cooperating witness, hiding the ball as to the 20 percent that she suspected the prosecutors would not be able to figure out.
What’s the point in having her go before the Senate? we wondered. We scratched our heads, but upon review of the immunity agreement, I concluded that Monica had committed herself to cooperating with duly authorized inquiries. Chairman Hyde’s request reflected the most democratic of authority in our constitutional order. We went to court and got an order directing her to cooperate. Though I knew we would get hammered by our usual critics, that went with the territory.
The press went crazy. So did the Democrats. Here was their totally biased take on the situation: Starr was once again cozying up to the zealots hell-bent on overturning the 1996 presidential election. Off base, as usual, but fervently held and aggressively espoused. My take on the press as a whole was reaffirmed: frequently wrong, never in doubt.
I did what I thought was right, period, and in this instance, what was plainly within the contemplation of our written agreement with Monica. No lawyerly stretching or twisting of contractual language was needed. To the contrary, the natural reading of the immunity agreement meant that Monica must cooperate or be in breach—and suffer the unwelcome consequences, including possible prosecution.
Her lawyers well knew by this time that Monica was not simply the victim of Saturday Night Bill’s flatter-filled, gift-giving charm. She had served as the perpetrator of a determined effort to keep the truth long hidd
en. By this time, she had also been savaged by Clinton partisans, in the playbook mode for dealing with Bill’s dalliance partners. When we came to judgment on the question, Monica’s lawyers quickly relented, and didn’t seek relief from a higher court, which would have been a tall order.
The interview proceeded, with enormous press fanfare, in a suite in the Mayflower Hotel. Our office did not participate. In light of the venue, I was reminded of our encounter with Monica in the Ritz-Carlton one year before and the pivotal assessment interview in Grandma Joan’s Manhattan apartment. Monica sat for sensitive interviews in exceedingly comfortable venues.
As we expected, the encounter proved to be a media circus, but little else. The interviewing subcommittee of three House managers emerged from the two-hour informal session with lukewarm praise for what had transpired. They sounded like diplomats dealing with an implacable foe. The utter irrelevance of the makeshift enterprise was demonstrated by the House impeachment manager who had risen through the ranks to be—other than Henry Hyde himself—the Churchillian figure in the drama. California’s James Rogan absented himself from the Monica-interview circus and, dutiful dad that he was, took his two daughters to the zoo. Rogan had definitely put his time to better use.
The trial marched on, but now spiced with video testimony from Monica, Vernon Jordan, and Sidney Blumenthal. Though the nation had practically tuned out, Blumenthal’s testimony was arresting. He acknowledged that the president had savaged Monica as “a stalker.” This was yet another lie.
By and large, the facts had long since been reported in detail, and all that was needed was an up or down vote.
However, the closing arguments riveted the nation’s attention. Hyde was magnificent, but both sides performed admirably. The president was well served by his defenders, White House Counsel Charles Ruff and Dale Bumpers of Arkansas.