Ken Starr: Following DOJ, WH Counsel’s Advice Is Not an Impeachable Offense

By Melanie Arter | January 27, 2020 | 3:06pm EST
(Photo By Karin Cooper/Getty Images)
(Photo By Karin Cooper/Getty Images)

( – Former Clinton investigator Ken Starr, who now serves on President Donald Trump’s impeachment defense team argued against article two of the impeachment case against Trump – obstruction of Congress.

He said Monday that it is not an impeachable offense for the president “to defend asserted legal and constitutional prerogatives of the presidency.”

Speaking on the Senate floor, Starr noted that during the impeachment of then President Bill Clinton, the House Judiciary Committee rejected a draft article against Clinton that said the president “fraudulently and corruptly asserted executive privilege.” 

“History, once again, is a great teacher. In the Clinton impeachment, the House Judiciary Committee rejected a draft article asserting that President Clinton, and here other words of the draft article, ‘Fraudulently and corruptly asserted executive privilege,’ strong words,” Starr said.

“‘Fraudulently and corruptly,’ that was the draft article. In my view, having lived through the facts, and with all due respect to the former president, he did. He did it time and again, month after month. We would go to court. We would win, and many members, not everybody, on the House Judiciary Committee agreed that the president had indeed improperly claimed executive privilege, rebuffed time and again by the judiciary committee,” he said.

“But at the end of the day, that committee, chaired, the judiciary committee of the House, chaired by Henry Hyde wisely concluded that President Clinton's doing so should not be considered an impeachable offense,” Starr said.

Starr said that Trump was being penalized by House Democrats for following the advice of the DOJ and the Office of Legal Counsel, and doing so is not an impeachable offense.

Trump “has consistently and scrupulously followed the advice and counsel of the Justice Department, and in particular, the office of legal counsel. He’s been obedient,” he said.

“As you know, that important office, many of you have had your own experiences professionally with that office. It’s staffed with lawyers of great ability and has a reputation for superb work. It has done such thoughtful work in both Democratic and Republican administrations. The office is now headed by a brilliant lawyer who served as a law clerk to Justice Anthony Kennedy,” Starr said.

“The House may disagree with the guidance provided to the president by that office. The House frequently does disagree, but for the president to follow the guidance of the Department of Justice with respect to an interbranch legal and constitutional dispute cannot reasonably be viewed as an obstruction, and most emphatically not as an impeachable offense,” he said.

“Despite the clearest precedent requiring due process where the accused in impeachment inquiry, but surely all the more so, in a presidential impeachment. House Democrats chose to conduct a holy unprecedented process in this case, and they did so knowingly and deliberately because they were warned at every turn, don't do it, don't do it that way,” Starr said.

Trump has been denied due process rights that were even given to former President Andrew Johnson, a racist, Starr said.

“On process, the president being denied the basic rates that have been afforded to every single accused president in the history of the republic, even to the racist Andrew Johnson, seeking to undo Mr. Lincoln's great legacy, he got those rights, but not here,” he said.

“Due process could have been honored, basic rights could have been honored, the House rules, the House’s traditions could have been honored, but what is done is done. These two articles come before this court, this high court of impeachment, dripping with fundamental process violations. When courts, and you are the court, are confronted with this kind of phenomenon, a train of fairness violations, courts in this country do the right thing. They do impartial justice,” Starr added. 


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