Ken Starr: "We Are Living In What Can Aptly Be Described As The Age Of Impeachment," "How Did We Get Here?" | Video | RealClearPolitics

Ken Starr: "We Are Living In What Can Aptly Be Described As The Age Of Impeachment," "How Did We Get Here?"

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During Monday's Senate impeachment trial, defense counsel Ken Starr detailed the history of presidential impeachment through its roots in the British Parliament, Hamilton's writings in the Federalist Papers, Andrew Johnson's impeachment, Watergate, Iran-Contra, and the Clinton impeachment.

Starr said that the power of presidential impeachment is supposed to be non-political -- a last resort against "rank criminality" like that displayed by the Nixon administration.

"Yet," he lamented. "Here in the world's longest-standing constitutional republic, instead of a once-in-a-century phenomenon, which it had been, presidential impeachment has become a weapon to be wielded against one's political opponent."

Starr cited a recent Wall Street Journal op-ed by Peggy Noonan, which warns: "Impeachment has now been normalized. It won't be a once in a generation act, but an every administration act. Democrats will regret it when Republicans are handing out the pens" at the signing ceremony.

"At this particular juncture in America's history, the Senate is being called to sit as the high court of impeachment all too frequently. Indeed, we are living in what I think can aptly be described as the Age of Impeachment," Starr said. "In the House, resolution after resolution, month after month has called for the president's impeachment. How did we get here?"

"When we look back down the corridors of time we see that for almost our first century as a constitutional republic, the sword of presidential impeachment remained sheathed," he explained. "Had there been controversial presidents? Oh yes, indeed. Think of John Adams and the Alien and Sedition Acts. Think of Andrew Jackson and Henry Clay. Were partisan passions occasionally inflamed during that first century? Of course."

"It took the national convulsion of the Civil War, the assassination of Mr. Lincoln, and the counter-reconstruction measures aggressively pursued by Mr. Lincoln's successor Andrew Johnson to bring about the nation's very first presidential impeachment," Starr said.

Starr blamed the Ethics and Government Act of 1978, passed in the wake of Watergate to establish the office of independent counsel, to getting the nation accustomed to impeachment, and cited Justice Scalia's dissent to a Supreme Court ruling which upheld the 1978 reform.

"The context of this statute is acrid with the smell of threatened impeachment," Scalia wrote.

"And it's not hard to discover why," Starr explained. "The statute by its terms expressly directed the independent counsel to become, in effect, an agent of the House of Representatives. And to what end? To report to the House of Representatives when a very low threshold of information was received that an impeachable offense, left undefined, may have been committed."

"To paraphrase President Clinton's very able counsel at the time [of his impeachment], Bernie Nussbaum, this statute is a dagger aimed at the heart of the presidency."

Starr explained that what followed was "a wildly controversial 21-year bold experiment with the independent counsel statute" that, including Iran-Contra and Whitewater, convinced both sides to allow the law to expire in 1999.

But the damage had been done, Starr said, "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."

Presidents Bush and Obama endured frequent partisan calls for impeachment and by the time of the Trump administration, "in the House, resolution after resolution, month after month has called for the president's impeachment."

"Like war, impeachment is hell -- or at least presidential impeachment is hell," Starr said. "Those of us who lived through the Clinton impeachment, including members of his body, well understand a presidential impeachment is tantamount to domestic war, albeit thankfully protected by our beloved First Amendment, a war of words and a war of ideas. But it's filled with acrimony and it divides the country like nothing else. Those of us who lived through the Clinton impeachment understand that in a deep and personal way."

Ken Starr served as the head of the Whitewater investigation and as independent counsel in the Clinton impeachment.

Watch Starr's full presentation Monday afternoon:



Rough transcript:

KEN STARR: According to Hamilton, courts were to be, in his word, "impartial."

There's that word again. And that's a daunting task for judges. Struggling to do the right thing, to be impartial. Equal justice under law. It's certainly hard in life to be impartial, in politics it's not even asked of one to be impartial, but that's the task the Constitution chose to impose upon each of you.

And significantly, at this particular juncture in America's history, the Senate is being called to sit as the high court of impeachment all too frequently. Indeed, we are living in what I think can aptly be described as the Age of Impeachment.

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 in it's inherently destabilizing as well as an acrimonious way.

Briefly told, the story begins 42 years ago. In the wake of the long national nightmare of Watergate, Congress and President Jimmy Carter collaboratively ushered in a new chapter in America's constitutional history. Together, in full agreement, they enacted the independent counsel provisions of the Ethics and Government Act of 1978.

But the new chapter was not simply the age of independent counsels. It became, unbeknownst to the American people, the age of impeachment. During my service in the Reagan administration as counselor and chief-of-staff to Attorney General William Smith, the Justice Department took the position that however well-intentioned, the independent counsel provisions were unconstitutional. Why? In the view of the Department, those provisions intruded into the rightful domain and prerogative of the executive branch of the presidency.

The Justice Department's position was eventually rejected by the Supreme Court. But most importantly in helping us understand this new era in our country's history, Justice Scalia was in deep dissent. Among his stinging criticisms of that law, Justice Scalia wrote this: "The context of this statute is acrid with the smell of threatened impeachment."

Impeachment. Justice Scalia echoed the criticisms of the court in which I was serving at the time, the District of Columbia Circuit, which had struck down the law as unconstitutional in a very impressive opinion by renowned judge Lawrence Silverman. Why? Why would Justice Scalia refer to impeachment? This was a reform measure. There would be no more Saturday Night Massacres, the firing of special prosecutors, as he was called, Archibald Cox by President Nixon.

Government would now be better, more honest, greater accountability and the independent counsel would be protected. But the word "impeachment" haunts that dissenting opinion. And it's not hard to discover why. Because the statute by its terms expressly directed the independent counsel to become, in effect, an agent of the House of Representatives. And to what end? To report to the House of Representatives when a very low threshold of information was received that an impeachable offense, left undefined, may have been committed.

To paraphrase President Clinton's very able counsel at the time, Bernie Nussbaum, this statute is a dagger aimed at the heart of the presidency.

President Clinton nonetheless signed the reauthorized measure into law and the nation then went through the long process known as Whitewater, resulting in the findings by the office which I led, the Office of Independent Counsel in a written report to the House of Representatives. That referral to Congress was stipulated in the Ethics and Government Act of 1978. To put it mildly, Democrats were very upset about what had happened. They then joined Republicans across the aisle who for their part had been outraged by an earlier independent counsel investigation -- that of a very distant with former Judge, Lawrence Walsh.

During the Reagan administration, Judge Walsh investigation into what became known as Iran-Contra spawned in norma's criticism on the Republican side of the aisle. Both as to the investigation itself, but also as to the statute. 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.

Enough was enough. And living through that wildly controversial 21-year bold experiment with the independent counsel statute, Congress, in a bipartisan way had a change of heart. It allowed the law to expire in accordance with its terms in 1999. That would be well-intentioned reform measure died a quiet and uneventful death and it was promptly replaced by Justice Department internal regulations promulgated by Attorney General Janet Reno during the waning months of the Clinton administration.

One can review those regulations and see no reference to impeachment. None. No longer were the poison pill of presidential impeachment part of America's legal landscape. They were gone. The Reno regulations seem to signal a return to traditional norms. Impeachment would no longer be embedded in the actual laws of the land, but returned to the language of the Constitution.

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 Peoples' House. The impeachment habit proved to be hard to kick.

Ironically, while this was happening here at home, across the Atlantic, the use of impeachment as a weapon disappeared. And the United Kingdom from which of course we inherited the process, impeachment was first used more than two centuries before those first settlers crossed the Atlantic. But upon thoughtful examination, a number of modern-day Parliamentary committees looked and found impeachment to be obsolete. Among other criticisms, members of Parliament came to the view that the practice which had last been attempted in Britain in 1868, fails to meet modern procedural standards of fairness. Fairness. Sir William McKay recently remarked: impeachment in Britain is dead.

Yet here at home, in the world's longest-standing constitutional republic, instead of a once-in-a-century phenomenon which it had been, presidential impeachment has become a weapon to be wielded against one's political opponent.

In her thoughtful Wall Street Journal op-ed a week ago Saturday, Peggy Noonan wrote this: "Impeachment has now been normalized. It won't be a once in a generation act, but an every administration act. Democrats will regret it when Republicans are handing out the pens." The pens of the signing ceremony.

When we look back down the corridors of time we see that for almost our first century as a constitutional republic, the sword of presidential impeachment remained sheathed. Had there been controversial presidents? Oh yes indeed. Think of John Adams and the Alien and Sedition Acts. Think of Andrew Jackson and Henry Clay. Were partisan passions occasionally inflamed during that first century? Of course. And lest there be any doubt, the early Congresses full well knew how to summon impeachment to the floor, including against a member of this body. Senator William Blount of Tennessee.

During the Jefferson administration, the unsuccessful impeachment of Justice Samuel Chase, a surly and partial jurist, who was nonetheless acquitted by this chamber became an early landmark in maintaining the treasured independence of our federal judiciary. It took the national convulsion of the Civil War, the assassination of Mr. Lincoln and the counter-reconstruction measures aggressively pursued by Mr. Lincoln's successor Andrew Johnson to bring about the nation's very first presidential impeachment.

Famously, of course, your predecessors in this high court of impeachment acquitted the unpopular and controversial Johnson, but only by virtue of senators from the party of Lincoln breaking ranks. It was over a century later that the nation would return to the tumultuous world of presidential impeachment, necessitated by the rank criminality of the Nixon administration. In light of the rapidly unfolding facts including uncovered by the Senate committee, and an overwhelmingly bipartisan vote of 410 to 4, the House of Representatives authorized and impeachment inquiry.

And in 1974, the House Judiciary Committee, after lengthy hearings, voted again in a bipartisan manner to impeach the President of the United States. Importantly, President Nixon's own party was slowly but inexorably moving towards favoring the removal of their chosen leader from the nation's highest office, who had just won reelection by a landslide. It bears emphasis before this high court, this was the first presidential impeachment in over 100 years. It also bears emphasis, it was powerfully bipartisan.

And it wasn't just the vote to authorize the impeachment inquiry. Indeed, the House Judiciary chair, Peter Rodino of New Jersey was insistent that to be accepted by the American people, the process had to be bipartisan.

Like war, impeachment is hell -- or at least presidential impeachment is hell.

Those of us who lived through the Clinton impeachment, including members of his body, well understand a presidential impeachment is tantamount to domestic war, albeit thankfully protected by our beloved First Amendment, a war of words and a war of ideas. But it's filled with acrimony and it divides the country like nothing else. Those of us who lived through the Clinton impeachment understand that in a deep and personal way.

Now in contrast, wisely and judiciously conducted, unlike the United Kingdom, impeachment remains a vital and appropriate tool in our country to serve as a check with respect to the Federal Judiciary. After all, in the Constitution's brilliant structural design, federal judges know, as this body full well knows from its daily work, a pivotally important feature: Independence from politics, exactly what Alexander Hamilton was talking about in Federalist 78.



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