Despite his essential role in the Bill Clinton impeachment, Ken Starr represented Donald Trump during his first impeachment trial in 2020.
Doug Mills/AP Photo
It was an unconventional and consequential choice. For one thing, Starr lacked prosecutorial experience. Despite having been a judge for six years in the 1980s, he was also a known partisan, active in the Federalist Society and conservative circles. Having aspired as a youth to become a preacher, he sold Bibles while in college and taught Sunday school even while on the federal bench. His piety often blurred the lines between church and state. As independent counsel, he would promote stories like one in the conservative Washington Times headlined, “Deeply Christian Starr Starts Day Jogging, Singing Hymns.”
The biggest problem with his appointment, however, was a major conflict of interest: Earlier in the year, Starr had provided legal assistance to Paula Jones, an Arkansas woman who was suing Clinton over a vulgar sexual advance he had allegedly made to her as governor. Starr even drafted an amicus brief supporting Jones. But Starr didn’t disclose those connections to the judges who appointed him, and later he would, against all ethical standards, make common cause with Jones’ team in his pursuit of the president.
When Starr began his investigation in mid-1994, Clinton seemed vulnerable. Despite passing some landmark legislation, he had failed to achieve his ambitious health care plan and was struggling over foreign policy messes in Somalia and Bosnia. But after November 1994, when the Republicans won control of the House for the first time in 50 years, Clinton found his footing and his fortunes revived. In response, Republicans launched new investigations into various matters and pressured Starr to find proof of Clinton’s wrongdoing. After several years, however, he couldn’t find any, and Whitewater receded from the front pages. Clinton was destined to become the first Democrat to win two presidential elections since Franklin Roosevelt. Starr, it seemed, would have to close up shop.
But then Starr made a big decision — to extend his inquiry. In early 1997, he and his team began poking around into the president’s sex life. Doing so might have been illegal, since it lay well outside Starr’s mandate as independent counsel. In a few months’ time, the news of his fishing expedition broke. In a June 1997 Washington Post article, Arkansas state troopers spoke with concern about what was going on. “In the past, I thought they were trying to get to the bottom of Whitewater,” said trooper Roger Perry, whom Starr’s staff had questioned. “This last time, I was left with the impression that they wanted to show he was a womanizer. … All they wanted to talk about was women.” The plunge into sexual politics drew denunciations. Starr chose to ignore the warning lights. Moralism propelled him forward.
As Starr later admitted, his office soon opened a back channel — also probably illegal — to lawyers for Jones, whose harassment case was proceeding along independent lines. A gaggle of far-right attorneys helping her had learned about the president’s recent dalliance with Lewinsky and passed it along to Starr’s staff. These attorneys — called “the Elves” because one of their number, the polemicist-provocateur Ann Coulter, compared them to “busy elves working away in Santa’s workshop” — then connected Starr’s office with Linda Tripp, the Pentagon aide who posed as a confidante to Lewinsky, got her to confess details about the affair and secretly taped their conversations.
Starr made his next momentous decision in deciding to use the affair as part of the impeachment case he was building. In mid-January 1998, convinced that Clinton had lied about his relationship with Lewinsky in a recent deposition in the Jones case, Starr asked permission from Reno to formally expand his probe into Clinton’s sex life — even though he had already done just that months before. Years later, he would admit that doing so had been a mistake. (Someone else should have led the Lewinsky inquiry, he conceded.) But in seeking his expanded mandate, Starr hid from Reno and the three-judge panel those back-channel contacts with the Jones team. Reno authorized the expansion, but when shelearned months later about the concealment, she almost fired Starr on the spot.
News of Clinton’s affair with a former intern, many years his junior, generated a predictable storm of outrage. But in a short time a public consensus emerged that, however tawdry the affair, and however harshly people might judge Clinton’s character, this wasn’t something to remove a president over. Washington pundits, in contrast, felt differently, as did a few well-placed reporters who, relying on a flood of selective leaks from Starr’s staff (especially attorney Brett Kavanaugh), kept the story alive for months — even as the president’s approval ratings stabilized north of 60 percent. Starr’s hovered around 22 percent.
Clinton appeared to retire the whole business on Aug. 17, 1998, when he finally confessed to and apologized for the affair. Most of the public said it was time to move on. But again Starr — along with Gingrich and the Republican House leadership — refused to let up. With Whitewater a dead letter, sexual politics would be the grounds for impeachment.
During Clinton’s testimony before a grand jury, all the questions had been about sex, and when Starr sent his impeachment referral to Congress in September, it contained gratuitous descriptions of specific sex acts, pornographic in nature. The goal was to incite new public outrage and, perhaps, humiliate his nemesis. Like the classic small-town preacher who rails against sexual deviance precisely because he finds it so titillating, Starr was even more ardent than some of his advisers in favoring a narrative laced with explicit detail. “I love the narrative!” Starr told aides who counseled greater restraint.
Despite losing seats in the November midterm election — historically an almost unheard-of development — Republicans pressed forward with impeachment. Starr made yet another fateful decision by choosing, against precedent, to become “an aggressive advocate” for impeachment. (In 1974, Watergate prosecutor Leon Jaworski had stayed neutral, submitting a spare factual account and merely suggesting to Congress possible impeachable infractions President Richard Nixon had committed.) Starr’s decision infuriated his ethics adviser, Sam Dash, onetime counsel to the Senate Watergate Committee, whom Starr had retained early on to give himself some cover. “He was a partisan Republican,” Dash later said of Starr. But “I really believed him when he said … he could push all that aside.” Having defended Starr for years, Dash now let it rip, quitting the team and publicly denouncing Starr’s decision to openly throw in his lot with the House Republicans.
“The Senate is being called to sit as the high court of impeachment all too frequently,” Ken Starr piously lamented in then-President Donald Trump’s defense. “Indeed, we are living in what I think can aptly be described as the Age of Impeachment.”