12/20/2006 10:18 am ET Updated May 25, 2011

The Starr Report: How to Impeach a President (Part I)

More than any other U.S. government document, the 1998 report of the Independent Counsel provided the Constitutional grounds for impeaching President William Jefferson Clinton. "The Starr Report" was the product of thousands of hours of work involving FBI agents, investigators from the Office of the Independent Counsel (OIC), Justice Department lawyers, grand juries, legal teams from the Congressional staffs, and dozens of independent researchers, (as well as the labors of Matt Drudge, Ann Coulter, Lucianne Goldberg and others who provided their assistance). These efforts, coupled with the earlier investigations of "Whitewater" and "Travelgate," cost American taxpayers about $70 million.

Kenneth W. Starr was a federal judge on the DC Circuit Court of Appeals during the Reagan years, and a former Solicitor General under Bush I. Today he is "Dean Starr" at the conservative Pepperdine University School of Law, and he regularly writes opinion pieces for scholarly legal journals and in the Wall Street Journal. He is also active in the Federalist Society, the pipeline organization for nearly all of President George W. Bush's judicial appointments. While he was Solicitor General, Starr mentored a young lawyer who caught his attention and he appointed him to be his top deputy; Starr's former aide is now the Chief Justice of the Supreme Court, John Roberts.

At the time Starr produced his report he knew that he was writing a significant document that future historians would examine closely to interpret its meaning. The Starr Report has become part of the historical record, and it is a primary source of immense importance to professional historians and other scholars who wish to better understand American history. The Starr Report made a forceful case for impeaching the President, and it will surely become an area of fruitful research. This vital government text deserves to be studied for years to come, and it should be the subject of multiple doctoral dissertations and serious scholarship.

The strongest evidence indicating that President Clinton had been untruthful about the nature of his relationship with Monica Lewinsky came from DNA tests. This aspect of the investigation is summarized here (verbatim) from the Starr Report:

"Physical evidence exclusively establishes that the President and Ms. Lewinsky had a sexual relationship. After reaching an immunity and cooperation agreement with the Office of the Independent Counsel on July 28, 1998, Ms. Lewinsky turned over a navy blue dress that she said she had worn during a sexual encounter with the President on February 28, 1997. According to Ms. Lewinsky, she noticed stains on the garment the next time she took it from her closet. From the location, she surmised that the stains were the President's semen.

"Initial tests revealed that the stains are in fact semen. Based on that result, the OIC asked the President for a blood sample. After requesting and being given assurances that the OIC had an evidentiary basis for making the request, the President agreed. In the White House Map Room on August 3, 1998, the White House Physician drew a vial of blood from the President in the presence of an FBI agent and an OIC attorney. By conducting two standard DNA comparison tests, the FBI Laboratory concluded that the President was the source of the DNA obtained from the dress. According to the more sensitive RFLP test, the genetic markers on the semen, which match the President's DNA, are characteristic of one out of 7.87 trillion Caucasians." ("The Starr Report: The Official Report of the Independent Counsel's Investigation of the President," Prima Publishing, Rocklin, Ca., 1998, pp. 42-43.)

Judge Starr liked to tell reporters that he saw himself in a similar role as the character "Joe Friday" in the old television cop show "Dragnet," whose tag line was: "just the facts, ma'am." With his soft-spoken, demur manner; Mr. Starr made every effort to appear affable and courtly in public. Yet he chose to include summaries of Ms. Lewinsky's testimony about several encounters with the President that the DNA evidence should have rendered superfluous.

For example, quoting again from the Starr Report:

"Monica Lewinsky began her White House employment as an intern in the Chief of Staff's office in July 1995. At White House functions in the following months, she made eye contact with the President. During the November 1995 government shutdown, the President invited her to his private study, where they kissed. Later that evening, they had a more intimate sexual encounter. They had another sexual encounter two days later, and a third one on New Year's Eve." (p. 58).

". . . At one point, Ms. Lewinsky and the President talked alone in the Chief of Staff's office. In the course of flirting with him, she raised her jacket in the back and showed him the straps of her thong underwear, which extended above her pants." (p. 60).

". . . There, according to Ms. Lewinsky, they kissed. She was wearing a long dress that buttoned from the neck to the ankles. 'And he unbuttoned my dress and he unhooked my bra, and sort of took the dress off my shoulders and . . . moved the bra . . . . [H]e was looking at me and touching me and telling me how beautiful I was.' He touched her breasts with his hands and his mouth, and touched her genitals, first through underwear and then directly. She performed oral sex on him." (p. 69, original ellipses inside Lewinsky quote).

The Starr Report contains details that appear to have nothing to do with the two articles of impeachment the House of Representatives brought against the President. Much of the report dwells on the minutiae of the physical relationship between the President and Ms. Lewinsky. There are long passages that seem to have been inserted into this non-partisan report for no other reason than to humiliate, malign, and embarrass President Clinton. I am sure the even-handed Judge Starr can explain the complex theories of jurisprudence behind these editorial decisions.

In 1998, Kenneth Starr was a dedicated prosecutor of Executive abuses of power, and he believed the President had committed impeachable offenses. But Mr. Starr's passion for "checks and balances" seems to have cooled given his silence about President George W. Bush's evoking of the "unitary executive," his NSA surveillance program and his sanctioning of torture. Dean Starr's apparent inconsistencies raise the question: If Clinton could be impeached for trying to hide a private sexual relationship, shouldn't Bush's actions be subjected to an investigation that is equally aggressive, only less pornographic? President Bush lied about policies that led to the spilling of Iraqi and American blood. The only blood spilled during the Clinton impeachment was Clinton's own, drawn by court order for two DNA tests.