Last week, President Donald Trump announced two celebrity lawyers to lead his impeachment defense: Kenneth Starr and Alan Dershowitz. It turns out, however, Dershowitz once called Starr “dangerous” and even called for an investigation into his behavior during the Clinton impeachment trial in the 1990s.
As noted by Law professor Evan Mandery in a column for Politico, Dershowitz has long been a critic of special investigations like the one Starr led. But Dershowitz’s criticism went far beyond a theoretical, academic argument about prosecutorial overreach: The problem, Dershowitz said, was Starr himself.
From Politico:
” In a series of essays published in 1998 under the title Sexual McCarthyism, he criticized Starr for a series of leaks—“really hemorrhages,” he wrote—and questioned whether Starr needed to be investigated by an independent counsel. He pointed to the strong appearance of a conflict of interest in his connection to conservative activist Richard Mellon Scaife, who Dershowitz described as a “Clinton-basher” and who’d recently endowed a new school of public policy at Pepperdine University, of which Starr was named the first dean in 1996. (Starr withdrew without taking office after the Lewinsky controversy but later became dean of the law school.) “Starr,” wrote Dershowitz in an essay from the book dated May 1996, “is quickly destroying the credibility and integrity that alone justifies having an Independent Counsel.”
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Later, Dershowitz painted Starr in even darker terms, as a threat to democracy. “Which is more dangerous to our liberties,” Dershowitz asked in a 1998 essay, “a president who may have had a sexual encounter with a willing intern and then tried to cover it up? Or a prosecutor who may have leaked secret grand jury testimony in an effort to get potential witnesses to change that testimony, and who hid his conflict of interest from the court?” Dershowitz concluded, “Most Americans correctly believe that the allegations against Kenneth Starr are far more serious, and his alleged misconduct—if it occurred—far more dangerous to our liberties.”
As uncomfortable as the pairing between Dershowitz and Starr may be, their individual decisions to represent Trump are even more confusing and problematic. Both men are zealous lawyers who have crafted serious moral narratives around the purpose of their life’s work—and both of them will be hard-pressed to reconcile these accounts with the decision to sit in front of the Senate, and all of America, in defense of Donald J. Trump. It’s the latest, and perhaps the most compelling, example of how people’s core principles are bent, and sometimes abandoned, in the distorting field of Trump’s gravity.
For Starr, the challenge will come from reconciling the current Republican position that no additional witnesses should be called during the Senate trial with the position he took in the 1990s, when he was rationalizing the fact that his real-estate corruption investigation had transmogrified into a perjury inquiry on an unrelated civil matter. Back then, Starr defended the idea of turning over every conceivable stone to find evidence of wrongdoing: “Lawyers,” he told the Mecklenburg Bar Foundation in 1998, “have a duty not to use their skills to impede the search for truth.”
This horrified Dershowitz, who saw Starr’s yearslong pursuit of Clinton as the quintessential example of overreach. Of all Dershowitz’s criticisms of Starr, he reserved the harshest for this argument. “He regards his ‘search for truth’ as an end that justifies any means,” Dershowitz wrote of Starr in an essay titled “Starr Above the Law.” “So did those who conducted the Inquisition and the Star Chamber. He urges lawyers to be ‘guided not simply by the client’s interests’ but by society’s interest as well.” Dershowitz concluded: “This is what Stalin expected from Soviet lawyers.”
It’s going to be difficult, if not impossible, for Dershowitz to reconcile the constitutional argument that he’s about to make with his past work. In his writings about Starr, Dershowitz took a clear position on what constituted valid grounds for impeachment. “What kinds of offenses warrant the extraordinary remedy of legislative removal of a President?” he mused in his 1998 book. “The answer must be an offense that poses a clear and present danger to our body politic—a high public violation of official duty.” The impeachment proceedings against Richard Nixon were proper, Dershowitz argued. “His crimes went to the essence of what an impeachable offense should be: he subverted the Constitution to his own partisan benefit, and in the process endangered the liberties of all Americans.”
It’s difficult to imagine an argument that Donald Trump’s use of American foreign aid for his own partisan benefit and the ensuing cover-up isn’t at least as serious, from a constitutional perspective, as the Watergate burglary and its ensuing cover-up. Moreover, Dershowitz won’t be cross-examining anyone, since he has said he’s participating solely as a constitutional scholar. He’ll need to deal with the facts as alleged, which means defending the activity as it took place.
Mandery concludes that it is “inevitable that another lawyer is about to fall in service of Trump,” adding that “Starr, who has rejected the role of government lawyers as partisans, instead zealously advocating their role as seekers of truth, is about to argue that the Senate trial should exclude additional fact witnesses with material information. And Dershowitz, who correctly concluded that Nixon’s subversion of democracy merited impeachment, seems about to argue that the far more serious behavior of the current president does not.”
