Former Independent Counsel Ken Starr Laments ‘Culture of Impeachment’

Former independent counsel Ken Starr on Wednesday morning suggested that the constitutional mechanism of impeachment was outdated, saying that Congress should instead censure presidents that abuse the power of their office.

Appearing on Fox News’s America’s Newsroom less than an hour before public impeachment hearings were scheduled to begin, Starr condemned the polarization of the American political zeitgeist and the process by which House Democrats have pursued their investigation into President Donald Trump.

“[W]e are living in this culture of impeachment — that everyone cries impeachment. And we inherited this process from the mother country. But the mother country hasn’t employed impeachment for executive branch officers — it’s a parliamentary system, of course — in two centuries. So we need to find a better way to hold the executive accountable,” Starr said. “If the Democrats believe that the president stepped over the line, discuss a motion of censure, resolution of censure, and say ‘this is really bad.’”

Starr is an unusual conduit for such an anti-impeachment message. The former federal judge and U.S. solicitor general became a household name in the ’90s when he took over and expanded the scope of the Whitewater investigation to encompass unrelated events, such as the Monica Lewinsky scandal that eventually led to then-President Bill Clinton’s impeachment. Clinton was acquitted in the Senate.

During his 1998 referral to Congress, Starr specifically stated that his investigation, which found that Clinton lied about his affair with Lewinsky, resulted in “substantial and credible information that President Clinton committed acts that may constitute grounds for an impeachment.” Starr did not mention “censure” during that address.

In addressing the circumstances particular to Trump, Starr said the president’s conduct did not amount to an impeachable offense.

“[W]e are dealing with the context of the foreign relations of the United States, the give-and-take of foreign relations. That doesn’t justify bribery, or however it’s going to be characterized,” Starr said.

Starr went on to say there was “no suggestion that the president somehow was profiting from this,” before again stating that bribery was not committed.

“Bribery in the traditional sense means — and I know the statute is very broadly worded — but this does not seem like bribery. To the person on the street, this is going to seem like a stretch,” Starr said.

Legal scholars would likely take issue with Starr’s interpretation of “bribery” in the U.S. Constitution as having roughly the same definition as “bribery” under modern criminal law. According to former DOJ attorney and Harvard Law School lecturer Ben Berwick, it is generally accepted that America’s Founding Fathers had a far broader conception of bribery in mind when they penned the Constitution.

“Their understanding was derived from English law, under which bribery was understood as an officeholder’s abuse of the power of an office to obtain a private benefit rather than for the public interest,” Berwick wrote last month for LawFare. “This definition not only encompasses Trump’s conduct—it practically defines it.”

[Image via Win McNamee/Getty Images]

Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.

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