The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Kenneth Starr—most famous for his role as the independent counsel who drafted the report that led to the impeachment of President Bill Clinton—passed away yesterday. His controversial career includes two major ironies and historical what-ifs.
The first is that Starr's tenure as independent counsel may have cost him a seat on the Supreme Court. Before his role in the Clinton impeachment, Starr (a former prominent federal judge and solicitor general of the US) was seen as a highly plausible GOP Supreme Court nominee. Indeed, his status as a widely respected pillar of the legal establishment was one of the reasons why he was selected to be independent counsel in the first place! The Starr Report made him a hero to social conservatives, but a villain to most Democrats and independents. Thus, he was no longer a plausible Supreme Court nominee. No Republican president was likely to spend the political capital needed to get Starr confirmed, so long as there were other, less controversial options that had comparable credentials. In some alternate universe, Bill Clinton manages to restrain his impulses or never gets caught, or Starr isn't named independent counsel. And we get Supreme Court Justice Kenneth Starr.
The second irony is that the biggest beneficiary of Starr's failure to get Bill Clinton removed from office was probably…. George W. Bush! Had the Senate convicted Clinton, Al Gore would have become president and served out the last two years of Clinton's term. As an incumbent president, Gore would likely have gotten more of the credit for the good economy of the time than he did as Vice President. Also, incumbent presidents generally get some electoral boost just for being incumbents. Even a very small boost would have been enough to net Gore the extra few hundred votes needed to win Florida in 2000 and defeat Bush.
Incumbent status would likely have been worth at least a 1% bump or more, enabling Gore to win by thousands of votes. Gore would have won a clear, though still close, victory, and few would ever have heard of the butterfly ballot or hanging and dimpled chads. In retrospect, Republicans should be happy that Starr failed, and Democrats should lament it!
On a slightly more serious note, I think the Starr Report was mostly right about Bill Clinton. He did have "sexual relations with that woman" and he did commit perjury about it (unless you adopt Clinton's highly idiosyncratic and convenient redefinition of what counts as "sexual relations"). And I reject the then-common view that Starr was delving into these details of the sexual relations out of some kind of prurient interest or obsession with sex. The allegations against Clinton related to perjury about his relationship with then-White House intern Monica Lewinsky, and investigators had little choice but to go into the evidence about that subject.
At the same time, I believed then and still believe now that Clinton's offenses weren't grave enough to justify impeachment and removal (Donald Trump's were far worse). But, in hindsight, I think it might have been better for the country if the Senate had convicted Clinton nonetheless, so as to set a precedent for accountability for presidential wrongdoing. Later events showed there is far more danger to underdeterrence of misconduct in high places than overdeterrence.
I had a number of ideological and jurisprudential differences with Starr, and his post-Clinton impeachment career certainly had its flaws (including a scandal-marred tenure as President of Baylor University). But he was likely more right than wrong about Bill Clinton. Ironically, Starr probably paid a higher price for investigating Clinton's wrongdoing than Clinton himself paid for committing those acts in the first place.