Judge Ken Starr, author of the new book Contempt, joined me this morning:
HH: Pleased to welcome back an old friend to the Hugh Hewitt Show, an old friend of mine, Judge Ken Starr. He is the author of the brand-new book, Contempt: A Memoir of the Clinton Investigation. Contempt is in bookstores now. It is available at Amazon. I just tweeted out the link. I have known Judge Starr since I showed up as a young clerk on the D.C. Circuit in 1983 to Roger Robb and George MacKinnon. I have known him. Since then, his time as a special counsel, his time as the solicitor general of the United States, his time as dean of Pepperdine Law School, his time as the president of Baylor, now as the author Contempt. Judge Starr, welcome back.
KS: Hey, Hugh, how good to hear your voice. Thank you.
HH: Good to have you. And what a timely book, Contempt, to come out. I want to go right to the heart of it. Can a sitting president be indicted?
KS: I believe he can. The Justice Department says no. And that’s been the traditional policy at the Justice Department, and Bob Mueller is bound by that.
HH: Now the Federalist 69, and you are no stranger to it, says the president of the United States would be liable to be impeached, tried, and upon conviction of treason, bribery, or other high crimes and misdemeanors removed from office, and would afterwards be liable to be prosecution and punishment in the ordinary course of the law. To me, that’s always been dispositive. Why are you persuaded he can be indicted despite that, Ken Starr?
KS: Well, first of all, the Federalist Papers are terribly important, but they are not the Constitution. And they help us understand, but it’s not sacred writ. And to me, what trumps, so to speak, that very learned passage in Federalist 69, are really first principles. If the president of the United States has committed a crime, then in my judgment, he, like anyone else, is subject to the ordinary course of law. Now it may very well be that the indictment will be held under the discretion of the prosecutor and the trial judges, or in abeyance, if articles of impeachment are brought. But there are different areas of accountability. There are arenas of accountability. And my view has been, and I think it’s supported by a Supreme Court case, Clinton V. Jones, no one is above the law.
HH: Now then, just to parse 69, Federalist 69, Alexander Hamilton disagrees with you. He says afterwards. What, so, are we at least in agreement that you disagree with Hamilton?
KS: Yes, and that’s a very poor spot to be in on my part, I must say.
KS: So I recognize that very, very persuasive authority points to the other side. And if you’ve got Alexander Hamilton V. Clinton V. Jones, I should wave the white flag of surrender.
HH: Well, let’s then move onto the next question, which is not decided by 69, in my view, which is can a president be subpoenaed to appear before a grand jury? You in fact were arguing that very point. And would you take us to that moment in time, because a lot of people don’t remember correctly the result of your motion to compel the president’s testimony.
KS: Yes, it never came to a motion, but yes. We issued various letters, or sent, I should say, letters from the Independent Counsel’s office through one of my colleagues to the president’s lawyer, David Kendall. And we said look, there are serious issues here. We’re inviting you to participate, to show up at the grand jury under arrangements obviously that would be appropriately designed to protect the dignity of the presidency, accommodate the schedule, etc., all those kinds of considerations that any prosecutor, any lawyer, any judge should afford the president of the United States. So we sent five, it may have been six, I remember five, someone said no, you sent six letters, to the president’s lawyer. Each time it was no, I don’t think so, not no, emphatically no, go pound sand, but just no. And so eventually, as we were moving toward the end of the investigation, I said okay, let’s issue a grand jury subpoena. Once we issued the grand jury subpoena, so it was never litigated, then the president’s lawyer said okay, let’s talk. Let’s arrange a time. And then we had that day that I’ll always remember, and that I describe in the book, August 17th, 1998, the president’s grand jury testimony. Now I recall a motion filed by David Kendall to stay proceedings. So maybe you hadn’t moved. But something was pending that he moved to the D.C. Circuit to stay, or he moved to the district court to stay proceedings because of the negotiations underway. And you negotiated a pretty good deal. But then, is it fair to say President Clinton ran out the clock on his deposition?
KS: Yeah, yes and no. He, we agreed to a four-hour limitation. He did what he did to try to run out the clock. But we got enough, unfortunately, and I didn’t want it to be that way, but the president chose a foolhardy course to actually commit perjury before the grand jury. Then when I left the room, left that historic Map Room in the White House, I knew that the president had, shall I say, crossed the line, and that we had no choice but to go forward to the House of Representatives with our report, and for the House of Representatives to make its decision on impeachment.
HH: Yeah, it’s a fascinating, Contempt is a fascinating account of the facts, and I do not believe anyone can argue that he did not perjure himself. They can argue that it’s not an impeachable offense, but it wasn’t about the affair with Monica Lewinsky. It was about the perjury, and it always has been. Let me ask you a question, Judge Starr, and only you may be in the position to answer this having served as the chief of staff to Attorney General William French Smith, a judge on the D.C. Circuit, and people forget the solicitor general of the United States. I’ve been longing to ask you this question. Can the president direct Rod Rosenstein, who is the deputy attorney general in charge of Mr. Mueller, can he direct Rod Rosenstein to direct the special counsel not to subpoena him?
KS: Yes. The president does have that power as our duly elected chief executive. We only elect two people as a nation. We elect representatives, and we elect senators. But we only elect the president. And then the president really has plenary choice in who’s going to be the vice president. So in a very real sense, the nation comes together on a single day, yeah absentee voting or whatever, but on a day, on a critical day, and says you’re the president. And Article II of the Constitution vests executive power in the president. He has plenary authority, full authority, over the operations of the executive branch. And so yes, he can do that under the Constitution. Is it wise? No.
HH: It may not be wise, but I’m just saying it’s…
HH: He doesn’t have to fire Mr. Mueller. He doesn’t have to fire Rod Rosenstein. He simply can direct him to not subpoena him.
KS: Yes, exactly. He’s got that authority. That will be interpreted as virtually everything the president does in connection with the investigation as a “obstruction of justice.” I disagree with that. I do not believe that the president of the United States in the exercise of his authority, absent a bribery or that sort of corrupt bargain, can constitution, can commit obstruction of justice. And that’s under, I think, very well settled Supreme Court case law.
HH: Now you have, you’re one of the proponents for the idea, and you have pursued it, that a president can be subpoenaed. What are the best arguments against subpoenaing his person? We know from Nixon V. U.S. that his papers can be subpoenaed, and his tapes. Obviously, that’s settled law. But we don’t know if his person can be subpoenaed. You never got there. He agreed to do it. What are the arguments against his being able to be subpoenaed?
KS: Because of the uniqueness of the presidency, the kinds of arguments that I believe are very well made by the Justice Department, most elaborately in the Office of Legal Counsel opinion in 2000, that the president stands alone, because of his uniqueness, he cannot be subjected to the authority of a single court or a single grand jury. And I understand the argument. I disagree with it.
HH: Now this morning in the Wall Street Journal is the headline – U.S. Holds Talks With UK-France On Possible Syria Strikes. And the president is tweeting about Mr. Strzok and Ms. Page. Clearly, the Russia investigation is impacting our conduct of foreign affairs, because it’s impacting the president. True or false, Ken Starr?
KS: I think it is. Yes, of course. Any investigation of the president, any civil litigation as in the Paula Corbin Jones litigation, affects the president. It detracts him. It distracts him from his duties.
HH: Do you think U.S. V…
HH: Do you think Clinton V. Jones was wrongly decided about civil cases and the presidency?
HH: You do, you agree with it?
KS: Yes, I completely agree with it under the principle of no person is above the law. And to say to a civil litigant that she’s got to wait for four years or eight years, to me, is a depravation of justice. Now I do think that principles of respect for the presidency born in separation of powers will require principles of comity, as we call it, between and among the branches. It means that the president’s schedule must be accommodated, and that it would be unconstitutional as applied, as we say in the law, for a judge not to listen very respectfully to the president saying I’m heading to Singapore to meet with President Kim, and I don’t have time to do this now. Okay, great. You get a two-month extension.
HH: So Judge Starr, as we get close to the end of our time, the book is Contempt. It’s in bookstores everywhere. It’s mandatory reading, actually, as we approach this perilous Constitutional moment. Do you see any evidence of obstruction that you think rises to the level of an indictable offense were it against anyone but the president?
KS: Against anyone but the president? No, I don’t, I have not seen that evidence. And I, certainly, and I’m going to go ahead and expand my answer to say I have seen nothing that the president has done to obstruct justice. In fact, to the contrary, from what I read, and of course, I’m behind the veil of ignorance, there is every indication that the president, through his lawyers, has been cooperating to an extraordinary extent, most dramatically revealed by Don McGahn, counsel to the president, having spent 30 hours in interviews with Bob Mueller and his team.
HH: Three minutes ago, the president tweeted Eric Holder could be running the Justice Department right now and it would be behaving no differently than it is, quoting Lou Dobbs. Do you agree with that?
KS: Well, (laughing) no, I have great respect for the integrity of Jeff Sessions, the Attorney General, and for Rod Rosenstein. I respectfully disagree with the president. I think he’s too hard on his attorney general.
HH: Last question, Brett Kavanaugh, you know very well. I don’t know him at all. I’ve never met him, actually, but I watched as much of the testimony as I could. I think he’s going to be confirmed a week from Thursday, or two weeks from Thursday. How did you think he did? Do you think he will be confirmed? And should he be confirmed?
KS: He should be confirmed. I think he will be confirmed. And I thought he acquitted himself brilliantly.
HH: Did you hear anything, it wasn’t the last question, I lied. Sorry, counsel. Did you hear…
KS: I answered too short.
HH: Did you hear anything, you were too short. You gave me no runway. Did you hear anything he said that suggested to you in any way that he was lying, evasive, or deceptive?
KS: No, silly charges, absolutely silly charges. I know Brett to be a person of great integrity, and so maybe to draw from Justice Scalia’s wonderful book from yesterday, perhaps it’s a matter of interpretation. But the idea that he was lying is, I think preposterous, and frankly, very mean-spirited.
HH: Ken Starr, the new book, Contempt: A Memoir Of The Clinton Investigation, available today in bookstores everywhere and at Amazon.com, mandatory reading for the perilous waters ahead. Contempt by Ken Starr, thank you, Judge.
End of interview.