March 20, 2020

Ken Starr

Former independent counsel Ken Starr discusses his investigation that led to the impeachment of President Clinton, and his work over 20 years later defending President Trump during his impeachment trial. Starr says that we are living in an “age of impeachment” in which it has become all too easy to impeach a president.

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He starred in two presidential impeachments, this week on ‘Firing Line.’

Our job is to gather facts and to evaluate those facts and to get at the truth.

He became a household name investigating the Clintons.

I did not have sexual relations with that woman.

Ken Starr brought us an affair to remember in all its unforgettable detail.

The President publicly acknowledged an inappropriate relationship.

During the next presidential impeachment, Starr said there was no case.

I don’t think that there’s anything close to an impeachable offense here.

And President Trump hired him to join his defense team.

Impeachment is hell.

He argued there is too much impeachment.
What does Ken Starr say now?

‘Firing Line with Margaret Hoover is made possible by… Additional funding is provided by… Corporate funding is provided by…
Ken Starr, welcome to ‘Firing Line.’

Thank you, Margaret.

You’ve been involved in both impeachments in this country’s modern history.
In the 1990s, you led the probe that investigated Bill Clinton and ultimately recommended grounds for impeachment.
And then, you were also most recently involved as defense counsel in President Trump’s impeachment trial.
True?

[ Chuckles ]
True?

True.

True?

I would quibble a little bit with the description in the Clinton impeachment because I was serving as independent counsel, so it’s such a different role.

Do you think it’s fair to say that you were involved in the impeachment, though?

I was involved in the impeachment, yeah.

Okay.

You got me.
Great cross-examination.

I want to make sure the introduction to the program is accurate.
How is it you came to be involved as a defense attorney for President Trump’s impeachment?

The President called me and asked me to be involved.
And then I made it very clear that I could not walk away from my public comments, that I thought that the President’s phone call was inappropriate and unwise.
So I could not be taking the position that the phone call was perfect.
But nonetheless, my role was a specific role, to talk about the constitutional and historical underpinnings of the impeachment process.

So, I thought we’d start actually by first watching a clip from President Trump’s impeachment trial.
Let’s take a look.

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.

What has brought us to be living in an age of impeachment?

We still live in the shadow of Richard Nixon.
Richard Nixon’s culpability, his long and horrible record, as brilliant as he was, then resulted not only in his resignation, but Congress responded instead of saying, you know, ‘The system worked,’ Congress responded by passing, a few years later, the independent counsel law.
and the independent counsel law really did usher in the age of impeachment.
And it was the independent counsel law under which Ronald Reagan was threatened.
He survived.
And then Bill Clinton was actually impeached.
He obviously survived.
But we were in the age of impeachment.
Everybody talks impeachment now a lot.
And we didn’t used to be that way as a people.
It is now, as we’ve seen, in my judgment, all too easy to impeach a president of the United States.
Let’s have a debate and a discussion, and let’s have elections.

Is that opinion or that position informed by your experience as an independent counsel?

Absolutely.
I’ve lived it now twice.
But especially during the Clinton years, when a conversation began but it really didn’t get under way very seriously to censure him.

There was some discussion about censure this time around, as well.

Yes. Yes. In fact —
Would you have viewed that as a more preferable outcome or course of action?

Well, now I’m gonna say, as someone who’s served the president as his attorney…
Right, right.

…I’m gonna speak now as someone who is simply a citizen and who observes — Of course.
Why would we remove a president from office when we’re just months away from an election?
I realize that became just a talking point, but it’s true.

Do you think the President called you because he saw you on TV?

I have no idea.

Here’s a clip of you defending the President on television before you were officially hired.

Does it reach the level of treason, bribery or other high crimes and misdemeanors?
My assessment of the evidence thus far, nowhere close.
The evidence is conflicting and ambiguous.

After that clip, the President tweeted that he agreed with what you said.

Oh.

‘You shouldn’t charge, but you cannot convict a sitting president on the basis of conflicting and ambiguous evidence and destabilize the American government.
Thank you, Ken!’
[ Both laugh ] So, it’s after that that he reached out to you.

Well, this was, of course, during the testimony itself.
Right? So, yes, it definitely was after that.

You were personally so tied to the impeachment, especially during the Clintons, it strikes some people as odd to hear you lament the age of impeachment now.

Is it that you have more credibility to speak to it?
[ Both laugh ]
Others would be the judge of that.
But I was privileged to serve in the Reagan administration, and we opposed the independent counsel law.
We said it’s unconstitutional.
And one of the reasons was because, as Antonin Scalia well put it, in an opinion decrying the independent counsel statute, that this statute, or the context of the statute, is — and these are the words of Justice Scalia — ‘Acrid with the smell of impeachment.’
This was a tool, a threat, a gun pointed by Congress at the White House.
And very unfortunately, presidents, including President Clinton, kept reauthorizing the statute when they should’ve had the gumption and wisdom to say, ‘We don’t need this.’
The Nixon experience teaches us that the tried and true separation of powers and oversight process works.
We don’t need some independent counsel out running around for years on end, which is what I was.
I was an independent counsel operating in this very, very strange world.

Can you explain your constitutional quibble with the statute itself?

It begins with the word ‘independent.’
The prosecutorial function should be part of the executive branch.
Ultimately, the president’s responsibility.
And so an investigation of the president should presumptively be conducted by the Justice Department, and let the chips fall where they may.
Now, the Justice Department may see fit to say, ‘You know, for this particular investigation, we need to go outside.’
But what the independent counsel law did was to create the statutory mechanism that, with really a hair trigger, we’re going to appoint these many — there were many independent counsels running around the countryside, and they were people of integrity.
But it was the whole idea of the office and that the office exists among other reasons, yes, to ensure integrity, but also to impeach the president.

So, if you had so many concerns about the statute and you thought the statute itself was unconstitutional, why did you accept the job?

Because the Supreme Court held it to be constitutional, so my views were not accepted by the Supreme Court.
That’s point one.
Point two, I was asked to do it.
And point three is, I knew that we could build in mechanisms of checks and balances within the office so that it was not the decision of one person in the exercise of his or her unfettered discretion making these judgments.
And I brought in an outside ethics counsel who was a veteran of Watergate himself, the legendary Sam Dash.

Ultimately, that outside ethics counsel resigned the day after you testified in front of the House of Representatives.

Yes, he did.

What did you make of that?
I mean, I read — I read that part of your book very closely.

I was really befuddled, perplexed, I was disappointed.
And I gathered the round table, so to speak, the next day of our colleagues, I said, ‘Did I actually become…’ which was the gravamen of the late Sam Dash’s complaint, ‘…an advocate for impeachment during the course of my testimony for the House Judiciary Committee?’
The irony is, Sam Dash had approved of our referral or report, the controversial report to Congress, the salacious report.
He had approved of it.
But he said — And I can’t judge that, and I never had a conversation with him — that during the course of my testimony, I became an advocate for impeachment as opposed to simply the independent counsel presenting the evidence.
I disagreed with them and so did all of my colleagues.

But you never spoke to him about it?

No, and I should have.
But he handled it the way he handled it, which was to issue a letter publicly, and I was not pleased with that.
But bygones be bygones.
And I’m not gonna speak ill of Sam Dash.
He was a great man.

So, President Clinton’s impeachment was because he lied under oath about his affair with Monica Lewinsky.
Correct?

And obstructed justice.

Let me ask you about a critique — and I’m sure you’ve read this article.
Lawrence Walsh, who was the independent counsel during the Iran-Contra affair.
He wrote in a article in 1998 about your investigation that your activity was not consistent with that of a professional prosecutor, generally because prosecutors avoided perjury prosecutions.
What is your response?

I respectfully disagree.

Of course you do.

But my response is, I gathered together a really all-star cast of prosecutors from around the country, including the Justice Department.
Now, Judge Walsh was just absolutely wrong.
That’s his view.
Lawyers sometimes have different views.
But the perjury case was just so powerful, and there it was essentially accepted by thoughtful people that, yes, the President did commit perjury.
But does that — Then we come back to impeachment.
Does that warrant, given the nature and the context, his removal from office?
And obviously the Senate determined, no, it does not.

All right. So let’s go back to 1994, actually, because you are made the head of the Office of Independent Counsel primarily to investigate Whitewater, which was an investigation of Bill and Hillary Clinton and several of their associates from Arkansas involved in real-estate deals.

Right.

And you wrote in your book, ‘Contempt,’ that you ‘sensed that investigating Clinton, our new youthful president, was likely not going to be a career-enhancing move.’

[ Laughs ]
Was your instinct, right?

Oh, very much so.
I look back on it, and I still would have taken the job.
Obviously, I would have had greater wisdom borne of experience to bring to bear.
And one of things that I’ve said is that I wish that there had been another independent counsel to take on the Monica Lewinsky matter.
I mean, that’s my big takeaway, because I was ready to go to Pepperdine University, become the dean of the law school and the founding dean of the School of Public Policy.
So here we are, back to the independent counsels — you give them one thing, but then other things come to their attention.
And what are they to do?

You write in your book that Clinton survived Whitewater, though he had testified untruthfully time and time again.

Yes.

Was it just that the evidence was never sufficient for an indictment?

It wasn’t that we didn’t have plenty of evidence.
We did not have evidence or evidence.
So prosecutors frequently note the distinction between what they know and what they can prove.
And it’s a great protection for American liberty that you’ve got — The ethical prosecutor has to make a judgment — hopefully it’s a collaborative judgment — with professionals around him or her, that say, ‘We can prove this case beyond a reasonable doubt before a fair-minded jury.’
That’s the standard, and it’s a tough standard to meet.
Now, we just didn’t read it with either President Clinton or Hillary Clinton, but we both — In our community, I’ll just speak for myself.
Others can speak for themselves.
We believe that they were untruthful in connection with those investigations.

Do you believe that there were crimes they committed that they got away with?

Yes.

What crimes do you think that he committed that he got away with?

I’m not gonna get into what the specific offenses were.
You know, it’s a matter of history now.
So let’s just let history be the judge of that.

You just said that you thought that the Monica affair ought to have been a separate, independent counsel.

Yes.

You went to Attorney General Reno when this part of it came to light and asked that your probe be expanded to include this part of it.
What would have it taken for it to have become a separate office at that point?

As a practical matter, the attorney general would have needed someone right then and there, who is ready to go with a staff who could begin the process of investigating what was under way.
So there were rapidly —
So there was really no way that it could’ve become a separate investigation?

No.

The coming to light of the situation with Monica got you this green light to initiate an operation known as ‘Prom Night,’ which was when Lewinsky was brought to a hotel room in Pentagon City Mall in order to be questioned and offered immunity.
I’d like to take a look at what Monica has said about that moment now in hindsight.

I remember looking out the window and thinking that the only way to fix this was to kill myself, was to jump out the window.
And, um… I — I just — I felt terrible.
I was scared.
And I just… I was mortified and afraid of what this was gonna do to my family, and… You know, I still was in love with Bill at the time.
Um… So I just — I felt really responsible.

Had you seen that before?

No, I had not.

So, in your book, you wrote that you deeply regret that you took on the Lewinsky phase of the investigation, but at the same time, 20 years later, you didn’t see that there was any practical alternative to doing so.
Explain that.

Well, we just chatted about there was no one else in the wings that Janet Reno could have reached out to.
So as a practical matter, it was us.
But it was her judgment.
We recommended that we take it on, so the — But the buck really does stop with Janet Reno.
I recommended it, but she had the choice of saying, ‘It shouldn’t be investigated at all.’
But she did the right thing.
She knew that it had to be investigated.
As sad and tragic from a human perspective as this was and Monica’s distress — I mean, her — her anguish, considering taking her own life, I mean, this is a human tragedy, an absolute human tragedy.
Unfortunately, the criminal laws we have — Because what was she seeking to do?
She was trying to encourage someone to commit perjury, and she had committed perjury herself.
So it was a human tragedy that end up having these very sad legal implications for the criminal law.

In the intervening years, the #MeToo movement has come to really shed a light on the power imbalances between and relationships in the workplace.
How do you think this would have been understood had it come to light after the #MeToo era?

I think we’ve seen such a culture shift that even though that — and I want to be absolutely clear about this — this relationship was consensual.
And I’ve never suggested in any comment or in any report otherwise.
But I think we nonetheless view the human interaction through a different lens now.
And so I think it would be — I think would be viewed quite differently.

There is a new documentary out on Hulu, called ‘Hillary,’ where Bill Clinton actually reflects on what led him to have that affair with Monica Lewinsky.
Take a look at how he describes his actions.

Everybody’s life has pressures and disappointments and terrors, fears of whatever.
Things I did to manage my anxiety for years.
I’m a different — totally different person than I was, with a lot of that stuff, you know, 20 years ago.

His explanation there for why he had an affair with Monica Lewinsky was that he was managing his anxiety.

Right.
I’m not going to judge that.
I just don’t judge people’s motives and… Look, he is an incredibly winsome, attractive guy, and he is able to articulate visions of his own conduct.
He is just a great communicator.

Looking back on it, is there anything you would do differently?

Well, above all, it would have been assigned to someone else.
If I could rewind, I would have been more persuasive in saying to the House Judiciary Committee, ‘I do not need to testify.’
The testimony was essentially limited to my day-long testimony.
And so I think that gave — Again, we talked about Sam Dash — the impression that I’m pushing for impeachment.
I’ve heard that since taking on the role for President Trump.
‘Wait. You were pushing for impeachment.
Now you’re defending the president.’
And I’ve been pretty darn consistent.
Let’s get out of the business of impeaching the president of the United States, except under the, truly, a last-resort kind of set of circumstances.
And Richard Nixon was that.
And what’s the last resort?
The last resort will indicate that, given all the facts, the totality of the facts, that there will, in fact, be bipartisan support.
410 members of the House of Representatives voted in favor of the Nixon impeachment inquiry.
It was virtually unanimous.
Four votes against it.
So they just said the nation needs to take a very careful look at what Present Nixon did.

But what strikes me, also, is that, in the intervening years since the Nixon impeachment, Congress has become, in many ways, less of an independent branch and less of a check on the executive branch.
It is just less likely that you get Democrats who side with Republicans and Republicans who side with Democrats.
You see more and more, increasingly since 1973, 1974, party-line votes with nobody going to the other side.
The moderate Democrats and the moderate Republicans are gone.

Well, my —
Couldn’t that be part of this?

It may be part of it.
That’s a very broad perspective on what’s happened to the entire politics of the country.
But remember that at least in the President Clinton situation, 31 Democrats voted in favor of the impeachment inquiry, whereas here, with President Trump, zero Republicans did.
And only, of course, Mitt Romney voted in favor of — in favor of one of the two articles.

You talk a lot about how the Clinton White House was too close with the Department of Justice, that the relationship was often improper.
And they were, for example, coordinating the responses, the Department of Justice, the White House during the Clinton impeachment hearing and during the time you were running the Office of the Independent Counsel.
Do you have similar concerns about the coordination between the Trump White House and its Department of Justice?

Yeah, I haven’t come to view on that.
But what I do —
Why?

I haven’t seen all the facts.

There’s a debate about the relationship between the Attorney General and the President — Attorney General William Barr, specifically, and the President — and whether he is exercising the proper degree of independence as he leads the Justice Department.
And there is a Judge Reggie B. Walton, who wrote in a memorandum about inconsistencies between the Mueller Report and how Barr characterized it in his summary that he sent to Congress.
He said that the report…
I honestly, Margaret, cannot comment at all.
I haven’t read Reggie Walton’s, Judge Walton’s report, and I’ve certainly not read the redacted portions.
I did not think — and as of this time, I did not — I do not think that what Attorney General Barr said in that initial press conference was in any way misleading.
But you can easily say, ‘Oh, well, you should’ve said this and that, because it’s a 400-page report.
This was a judgment call by the Attorney General.

It was a judgment call, but it wasn’t just what he said in the press conference.
It was what he wrote in the letter and whether the summary letter that he sent to Congress fairly characterized what was in the report.

I think at the time I felt that it was that it was fair.
You can always criticize the letter as not being as complete as it should.

What does that mean that a Bush-appointed federal judge has come out and said that he believes the Attorney General was not fairly characterizing the report?

Well, it’s something that has to be taken seriously.
I’m just not prepared to comment on it because I’ve not read Judge Walton’s order, I haven’t seen the redacted provisions — parts of the report.

It’s unusual — no? — for a federal judge —
Oh, of course it is.

And what does that do to Attorney General Barr’s tenure at the head of the Justice Department?

Being the attorney general is incredibly difficult.
You’re going to take brickbats, including at times from judges.
I think, in many respects, it’s the hardest job outside of being the president of the United States in government, because at every turn, you’re going to be absolutely savaged — not just criticized, savaged — very difficult judgment calls that you make.
And so I’m very empathetic.
Full disclosure — I served with Bill Barr, and I served under Bill Barr.
And I know him to be a person of total integrity.

The most fun part of the show is that William F. Buckley Jr.
hosted the original ‘Firing Line.’
And in 1992, you were on the original ‘Firing Line.’
You were discussing torts and reforms, and I’d like you to take a look at what you said then.

Let’s move to another one of your proposals, namely the the cap on punitive damages.

Our proposal is to recommend to the states that the states, through their legislative bodies, consider imposing a cap.
A number have, by the way.
Some have actually abolished punitive damages.
They’re saying that the efficacy of punitive damages is really quite limited.
And yet the unpredictability is so high that it serves as a wild card.
Punitive damages claims are almost always asserted.
They’re seldom achieved, by the way, so the jury system very frequently does work.
But again, it has the wild-card effect, because when you do get a punitive damages award, it tends to be astronomically high.

Do you still think the same way about punitive damages as you did in 1992?

Absolutely not.

Why?
Why has your thinking changed?

Punitive damages are actually a very important part of our system.
There’s a lot of terrible stuff that goes on in the world, and the law of torts — fancy word, or French word for ‘wrongs’ — developed this mechanism, and the mechanism makes complete sense.
To deter someone from doing that again, we’re not gonna send them to jail, but we’re going to say, ‘Here, you’re going to pay an additional sum of money to the victim.’
But I was also, at that time, the Solicitor General of the United States, and I was an advocate.
I was an advocate for a reform package that we were pursuing under President Bush 41.

In your private practice, you have wound up, also, in a position where you sued for punitive damage.

Absolutely.
But I do think seriously that there is an important role for punitive damages to play in our system of righting wrongs.
Like any good tool, it can be misused or it can be carried away.
But there are mechanisms to ensure that it’s used properly as a tool.

So, were those litigations that you’re a part of, the wisdom and experience that led to you changing your mind or did you change your mind before?

Oh, no. I’ve been much more, shall I say, broad-minded as a lawyer in private practice, as a judge, that punitive damages have a very important role to play.

Ken Starr, thank you for coming to ‘Firing Line.’

Thank you, Margaret.
Yeah.
[ Both laugh ]
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