Ken Starr says the impeachment of President Trump is a 'nasty lesson' in how not to conduct an impeachment

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Ken Starr says the impeachment of President Trump is a 'nasty lesson' in how not to conduct an impeachment

Former independent counsel Ken Starr joins Mark Levin on 'Life, Liberty and Levin' to discuss House Democrats' precedent-shattering impeachment of President Trump.

This is a rush transcript from "Life, Liberty & Levin," December 22, 2019. This copy may not be in its final form and may be updated.

Mark Levin, host: Hello, America. I'm Mark Levin; this is "Life, Liberty & Levin" with my good friend, Ken Starr. How are you, sir?

Ken Starr: I'm doing great. Thank you.

Mark Levin: You were a judge for a period of time. How long were you a judge?

Ken Starr: Six years.

Mark Levin: Did you like it?

Ken Starr: I loved it.

Mark Levin: Yeah?

Ken Starr: I didn't want to leave.

Mark Levin: You didn't want to leave.

Ken Starr: No.

Mark Levin: But you left.

Ken Starr: I was asked by the president through the attorney general -- I knew President Bush 41 and Attorney General Thornburgh said, "we really need you to come on board" and so I said "no" twice but the third time proved to be fatal for me. But I love being solicitor general, which is why I left the bench.

Mark Levin: I'm glad you're not a judge anymore. You'd be one of a thousand. We'd never hear from me again. But it's very important that you're available today to give commentary on what's taking place in Washington. You know I study this -- you've lived this as an independent counsel under the independent counsel statute, which was quite different. You had all these rules you had to follow as a matter of federal law and then Congress came to its senses and said, we don't like this anymore and they let it lapse. But let's talk about coming to our senses. What's going on in the House of Representatives today has never taken place in American history. The manner in which the Intelligence Committee took over the investigation, the manner in which that investigation occurred, dumping it into the House Judiciary Committee that gets testimony from lawyers and law professors. And now we have Nancy Pelosi after this vote is taken, this one-sided vote is taken who holds up the impeachment and says, "you know, under the House rules, I don't have the point managers right now." Professor Laurence Tribe of Harvard has told her, "hold it up, so you can get McConnell to do what they want him to do in the Senate." What do you make of all this?

Ken Starr: It is a lesson, and a nasty lesson in how not to do impeachment. It's an example of raw power being exercised and the Constitution vests sole power in the House of Representatives. She seized power that I think belonged to the House of Representatives as a body, all 435 or 431, few absentee folks these days. She seized power on September 24. She unilaterally -- without a debate in the House -- and the House is supposed to be a deliberative body. That's really what the rules are designed to promote, orderly, procedurally sensible decision making. She just said "here it is." So she exercised a quasi-monarchical power and I think imperiously seized the power of the House and said "this is now an impeachment inquiry." Oh, yes eventually there was a vote, but only after the die was already cast. Now, the House Intelligence Committee, as you just said, with Adam Schiff and what an enormously poor judgment in the choice of someone to essentially lead the impeachment inquiry instead of someone like Peter Rodino, a Democrat during Nixon who was respected for his fairness. Henry Hyde, a Republican during Clinton, who was not simply respected he was beloved on both sides of the aisle, very conservative Republican but he believed in our culture of liberty, as you well know. Instead of someone like that of real dignity and stature, she chose someone who had led this extravagant, ill-founded theory of Russian collusion, which, by the way, was debunked by Robert Mueller. So at every step, including the most recent step in saying, "well, we're going to listen to Professor Tribe and we're going to hold this up," now she is intruding into the power of the Senate. It is the Senate that has the sole power to try impeachments and now she wants to, I gather, condition the sending of the articles over. She's done her work, appoint the impeachment managers, and then they present or exhibit the articles before the world's greatest deliberative body, the Senate. She's trying to say now we're going to now engineer this in a way that does what is essentially, I believe, Mark, a concession that the record was inadequate. It was inadequate, to indict, so to speak and I believe it's woefully inadequate to convict and remove the president from office in the Senate.

Mark Levin: As I stand back and look at this and hear what you're saying, Nancy Pelosi has burned through the House tradition when it comes to impeachment, and not just the presence of judges. We've never seen anything like this before in American history. She burns through any notion of due process. I'm not talking about criminal due process. I'm talking about, you know, post-Magna Carta type due process that people believe that people need a fair hearing. You should be able to confront your witnesses and that sort of burns through that. They're in a race to get this done. We've never seen anything like this and now she's reaching, as you put it, into the Senate.

Ken Starr: Right.

Mark Levin: And saying, "now I have some control over what you're going to do over there. And if you dismiss this or you act quickly, I don't like that, so I'm holding back". I don't know if it were me. I'd like your input on this. If I'm Mitch McConnell and the Republicans, I have to defend the Constitution. I have to defend my institution from the poison that's pouring into my institution from the House of Representatives and the Democrats. She can't cripple a president and blackmail a Senate at the same time. I'd be curious. I think that Mitch McConnell should do something akin to saying, "you know what? You're not sending it here? It's null and void. You're not sending it here? We don't recognize it because you're not finishing the process. We're part of the process." Something like that do you think?

Ken Starr: Yeah, I like your null and void, but in essence, there's nothing for us to do. You cannot, just as we cannot as a Senate, impose conditions on what you did. We did not say before you exhibit any articles over here, you must take the following steps. You must call Ambassador Bolton or you must call Hunter Biden. We didn't do that. We didn't interfere with you. We call the word and I love the word "comity" sounds like "comedy," c-o-m-i-t-y, "comity" between the branches and she is violating, if she persists, that basic unwritten rule of comity by essentially saying, "hey, this is a hold-up; this is a stick-up." She has no authority to do it, and I'm really quite surprised, I really am, that Professor Tribe said this is a serious possibility, and apparently the Democrats and others -- some 30 Democrats who were urging her to do this before the vote was even taken on impeachment, "Let's start saying, ‘You need to have the following witnesses.'" There -- I just -- to me, again, it's unthinkably and unpardonably intrusive. It's yet another, Mark, abuse of power, or an attempt at abuse of power.

Mark Levin: Now, let's talk about these articles, abuse of power and obstruction of Congress. A few short answers, if you will, and then we'll get to the bigger point. Obstruction of Congress, really? Are we talking about the entire Congress, or are we talking about the Democrats in the House of Representatives? The Senate is part of the Congress, so it's not even technically accurate to say obstruction of Congress. That said, when a president challenges a subpoena for a witness or documents -- a former judge -- and he goes to court to work out this complex dispute, separation of powers between Article I and Article II, and they go to an Article III court, how can that be obstruction of justice or obstruction of Congress?

Ken Starr: It certainly is not obstruction of justice because the president was essentially saying, "Let's go to the Article III branch." That is our system, and we all know that. They have chosen -- the House majority has chosen, "Well, that's going to take too long, and we're in a hurry." So, I don't think at all that anyone is seriously suggesting it's an obstruction of justice other than rhetoric, but it shouldn't be viewed as an obstruction of Congress either unless Congress just has, again, unchecked power in a system that's so rich with checks and balances, as we learn in school. Okay, we have a disagreement here, and what's the disagreement? You want the testimony of the closest advisers to the president, and as a matter of constitutional law, the president has the right to protect those conversations confidentially.

Mark Levin: Why is that important?

Ken Starr: It is important, as the Supreme Court of the United States recognized in Richard Nixon's case, and recognized it unanimously. In order for the president to carry on the Article II function of serving as our chief magistrate, he has to be able to have the advice and the confidence of those around him, just as a judge has to be able to depend on his or her law clerks, and for that conversation between the judge and a law clerk, or between Nancy Pelosi and her general counsel, that has to remain confidential in order for there to be a full advice where -- say, "This is our best judgment, Mr. President." The president gets to protect those, presumptively. It can be overcome, but that's why judges and the Article III branch sets.

Mark Levin: Now, this isn't new. It's not a secret. Separation of powers; executive privilege; conflicts between the branches. It's gone on with Democrats and Republicans; it's gone on when the Republicans controlled the Congress and when the Democrats controlled the Congress, and so forth and so on.

Ken Starr: If I may, it's gone on since George Washington.

Mark Levin: Since George Washington.

Ken Starr: George Washington invoked what we call executive privilege.

Mark Levin: So, to raise it to the level of an impeachable offense, and if they get away with that, where does that leave the country? Where does that leave these branches of government? An all-powerful House of Representatives, which the Framers feared, and a weakened president? This is gravely concerning from a constitutional perspective, is it not?

Ken Starr: We used to talk about the imperial presidency, but now we can talk about the imperial and imperious House of Representatives. So, this is a chapter in our history. It's already proving to be a very ugly chapter in our constitutional history, and so I hope that cooler heads in the future will prevail and that people will return to what I would call constitutional order. You mention the Magna Carta, not in some judicial sense. What we call it is fundamental fairness. Are you proceeding in a way that a fair-minded person who doesn't have a stake in the specific action can say, "Yeah, that was fair; that was fair?" And I think those norms have been violated as well. So, I think since September 24th we've had a very ugly anti-constitutional -- some would say unconstitutional -- certainly, as Robert Bork would say, an anti-constitutional exercise in power by the House of Representatives, and specifically by Speaker Pelosi.

Mark Levin: My question to you when we return is, if we have an anti-constitutional or unconstitutional act by the majority in the House pushing the result of an impeachment, apart from what Nancy Pelosi is pulling now, what is the obligation of the United States Senate in response to that? Does the Constitution compel them to hold a trial? Does the Constitution say what kind of trial it must be? When we return, I'd like your input on that. Ladies and gentlemen, don't forget you can watch me on Levin TV most nights by giving us a call at 844-LEVINTV, 844-LEVINTV, or go online to BlazeTV.com/Mark, BlazeTV.com/Mark. We'd love to have you. We'll be right back.

[COMMERCIAL BREAK]

Mark Levin: Judge Starr, if, as you say, the impeachment process has been anti-constitutional -- Alan Dershowitz has said it's unconstitutional, the same ballgame -- what are the actual obligations under the Constitution of the United States Senate? Must they hold a trial? Can it be a truncated trial? Can they dismiss it? Do they -- what are the options?

Ken Starr: The Senate has the sole power to try impeachments and the beauty of that wonderfully Olympian general language is all right, we're going to set the rules for trial. That can include a motion to dismiss the -- entertaining a motion to dismiss -- but then the principle of comity, the nonconstitutional textual attitude of, "well, we disagree." So here I'm going to imagine myself being in the world's greatest deliberative body. We think that what the House did was either anti-constitutional or Alan Dershowitz is right; it was unconstitutional. But we have a duty to treat what they did with respect regardless of what we think about the process, they used, fundamentally unfair, violation of basic norms, violation of history and tradition, tearing all that asunder, but they've done it. They will have to live with that. Now we have an obligation to try the case. So what do we do? I think what we do is, as a matter of comity, we listen to what the House managers have to say. We give them a decent opportunity, a full and fair opportunity to present their case, essentially its argument. It's almost as if we have now moved to the stage of arguing before the jurors or the appellate judges because the witnesses have been called over on the House side, so it's not a perfect analog with a judicial proceeding, jurors and the judges and then courts and so forth, it just it's -- this is entirely different.

Mark Levin: Well, let me ask you about that.

Ken Starr: Yeah.

Mark Levin: The way I see this is the Senate's number one obligation is to protect the Senate and uphold the institution and the Constitution. If you have the other body that's conducting itself in an anti-constitutional way, why would you then entertain it with comity? Does that not give it then the Senate's imprimatur? Is it not then the mob or the rogue behavior in the House that leaches into the United States Senate? And isn't the Senate and its role under our Constitution, as it was debated at the Constitutional Convention, say in Madison's notes and Madison was worried about the House, was to protect us from the House? So they have an elaborate trial system. You have a two-thirds majority of the chief justice of the United States overseeing it all, just in case the House was out of control. Well, the House is out of control. So must the nation and the Senate and the chief justice now go through this entire long process or can they say "what you did was unconstitutional and anti-constitutional; we're not playing along we're killing it."

Ken Starr: I think that the Senate has the raw power to do that. It can. It can say "if you had," but this is a very big "if," "a broad consensus that what the House had done was essentially the House had run amok. It was the runaway house violating constitutional norms." Let's just say that there was a suggestion, a serious suggestion that the House Intelligence Committee in a bipartisan fashion had decided to waterboard the witnesses. Right. What would the Senate do under that obviously extreme set of circumstances? It might very well say we are not going to give credence to torture in the House of Representatives down in the dungeon. We're just not going to do that. I think it has the raw power to do it. Under the circumstances that we're confronting here, I come back to this unwritten rule of comity. We're going to respect the result and we're going to now decide how under all the circumstances to treat it. Now, the majority leader has said the record is very thin. I agree with that. What we heard in the debate leading up to the articles is that the record is overwhelming. It's essentially, in fact, Jamie Raskin.

Mark Levin: Congressman.

Ken Starr: Congressman from Maryland, who stood in and during the House Rules Committee earlier in that proceeding, said it's essentially the record is so conclusive and it's essentially uncontroverted. Well, that's your judgment, but that's the judge or the prosecutor. The Senate could very well say, you've really got to be kidding me and by the way, you're wanting additional witnesses, I'm so sorry you can't have it both ways. We call it intellectual incoherence or just, hey, you're flat wrong. You're so inconsistent out of one side of your mouth, you're saying X, and the other side you're saying Y, you can't be right both times. It's uncontroverted, it's overwhelming, and we need more witness.

Mark Levin: Schumer wants four witnesses. He really wants 44 witnesses if he can get him. He figures one will lead to the next. But he left a few names out. Why doesn't Schumer want to hear from the so-called whistleblower? Or Hunter Biden? And, of course, comity -- they'll never call Adam Schiff, but he'd be the perfect witness. So there's certain witnesses they want and certain witnesses they don't want. But your point is, and I want to underscore it to make sure I'm right. You had your shot at the investigation; the Senate doesn't have to now fill your gaps with additional people. And if it's so overwhelming as you keep telling the American people in every form that you're in, then let's just make a judgment on the facts. Is that what you're saying?

Ken Starr: That's exactly what I'm saying. You chose -- you wanted to hear from Ambassador Taylor, deputy assistant secretary of state, Kent. Okay. Do we need to hear from them again? And then, you know, you have a conversation. Why do we need to hear from them again? They testified in closed hearing and then they testified in open hearing and then we again have heard time and time again, including on the floor of the House of Representatives. Time and again, we've got all the evidence that we need, period. That's the end, by your honor, that we call that a confession, or at least a statement against -- an admission against interest. So the fact, to answer your point specifically about Senator Schumer, does it suggest to you that this is result-oriented and partisan, that I only want to hear from witnesses that I think can help us but I have a message for those calling for witnesses who you think will be favorable. Be careful what you ask for; witnesses frequently come with surprises.

Mark Levin: We'll be right back.

[COMMERCIAL BREAK]

Aishah Hasnie: Live from America's News Headquarters, I'm Aishah Hasnie. Lawmakers digging in along party lines as the standoff over an impeachment trial carries over into the holidays. Speaker Nancy Pelosi's decision to withhold impeachment articles from the Senate is not sitting well with Republicans, who look eager to acquit President Trump. Democrats want the upper chamber to call more witnesses. The GOP leadership say "no" to that. A recent ABC News/Washington Post poll shows 71 percent of Americans think President Trump should allow his aides to testify. Meantime, eyes on North Korea this week after Kim Jong-Un's government promised to deliver a, quote, "Christmas surprise" for America. There is word Kim has been discussing bolstering his nation's defense capabilities with his top military people. Denuclearization talks between Pyongyang and Washington are at a stalemate. I'm Aishah Hasnie. Back to this.

[MUSIC PLAYING]

Mark Levin: Ken Starr, you were independent counsel under the now-lapsed Independent Counsel Statute. What is or were the differences between what you did and what Congress did back then, and what's being done today to President Trump?

Ken Starr: There was a reliance under the statute on an independent officer -- call them special counsel; I was called independent counsel -- to go gather the information, assess the information, to come to a judgment as to whether the statutory standard had been reached, and that is the requisite level of information, of evidence, that meant that we needed to -- as we unanimously did on my staff as my ultimate judgment -- that we needed to refer -- that was the language of the statute -- the matter to the House of Representatives.

Mark Levin: So, you were required under the statute, if there was a matter that reached a certain level, to refer to the House.

Ken Starr: Yes. And while the statute was not very specific at all, nor the legislative history, as to -- what does it mean to refer this information? We felt that there needed to be, given history and tradition, and just given common sense, a full report, and we needed to prove our case. And what was the case? The case was that President Clinton had committed perjury, had obstructed justice, and ironically, in count 11 of our report to Congress, we contended that he abused the powers of the presidency, including -- are you ready for this? The invocation of executive privilege in a totally frivolous way, and other things. And people can go back and --

Mark Levin: Didn't he call it presidential privilege or something? Didn't they concoct something, or am I wrong about that?

Ken Starr: A protective function privilege.

Mark Levin: That's what it was, yeah.

Ken Starr: The palace guard, if they see the president murdering someone, they cannot speak about it. I mean, it's perfectly silly, and it got no votes whatsoever in the Judiciary. No judge, all the way up, voted in favor of the existence of this nonexistent privilege, but it saved time, you see. President Clinton had a game plan, and it was very effective. Stall -- four corners' offense, as we used to say in basketball -- and pound the prosecutor; turn the country against the prosecutor and against the whole process before it gets to the House impeachment. So, it was -- the politics were different, but in any event -- so, what the House had before it, in contrast to here, was a very comprehensive report -- it's called the Starr Report -- so they could go through it, and then they could look at all the evidence, and it was all there. We had to hire a U-Haul truck to send it up. And so, there it is. They had the opportunity to go through it and then to determine, "Are we going to release this information to the public?" and so forth. What happened here was the cart was way before the horse. Right? First of all, there was no special counsel or investigation. There was no staff investigation. There was no equivalent or counterpart, Mark, to the Senate Select Committee on Watergate, which was so effective in doing what? Not in the kind of haranguing and speechifying that has gone on here for the last three months, but actually at finding facts. The select committee could have been formed here. "Oh, we're very concerned about the Ukraine phone call. Let's form a select committee to explore this, and then we'll determine whether we can get the testimony of people in the administration," et cetera, et cetera. None of that was done. It was just "Let's send it to the House Intelligence Committee, to Adam Schiff. Let him use his judgment, the majority's judgment, and then we'll have some public hearings. Oh, along the way we'll have a House vote." The process was so orderly under Newt Gingrich's leadership as Speaker, under Henry Hyde's leadership, and there was not this multiple-committee stuff. The impeachment, consistent with tradition and Clinton, was put into the hands of the House Committee on the Judiciary. Here, of course, the Judiciary Committee barely held any hearings other than the four professors.

Mark Levin: Your report, as you point out, listed specific crimes attached to the criminal code, which is what you were required to do. This report that they laid out against the president of the United States -- the first one is fascinating. They finished the hearing, like, on a Thursday or Friday, and then all of a sudden 700 pages show up. So, they were working very hard over the weekend, apparently. But when you go through it, they throw in words like "bribery." They throw those words in because they know they need to throw those words in, yet they show no bribery, not under any criminal statute, not under any English common law, which is what the constitutional language is based on. Nothing, which I guess goes back to your point. They need more witnesses now. But this impeachment -- I can't even sometimes get my hands around exactly what this man is being impeached for. They can talk about interfering with an election; he didn't tell the Ukrainians to interfere with an election. They could talk about whether they liked the phone call or not; they can talk about bribery all they want. When you look at the bare bones of the constitutional language and the history of impeachments as applies to presidents, we have never seen anything like this before.

Ken Starr: Nothing close. Take the abuse of power, Article I, and then lay that alongside the abuse of power article in the three-prong Nixon impeachment. A fair-minded person, when he or she reads the Nixon abuse of power, oh, my word. You say, "This guy has got to go. If this is true," and it largely was, "he's got to go." You read this, and it essentially is rhetoric, and it's characterization, and I would say this is one person's reading. I think it's a very unfair characterization of the transcript itself, and then it is a particular interpretation of the facts that followed, but while ignoring exculpatory facts. That was one of the strange things to me about the long report. Very briefly, the long report, in terms of the evidence as opposed to the rhetoric and the history and the tribute to the Founding Fathers -- "We welcome that; we hope that this will be the new order of the ages. We want to know what the Founding Fathers thought." They emphasize Ambassador Gordon Sondland. I listened to it, and I read it. His testimony, as the end of the day, was muddled and tended to be exculpatory. Who did they largely ignore? The most respected person who testified in the whole phalanx of witnesses, and that's Ambassador Kurt Volker. Universally respected; everyone said, "Oh, his integrity is impeccable." He even said, and I'm arguing the facts here, it was entirely appropriate for the president to want an announcement of beginning investigations, totally appropriate. Why? Because the Ukrainians had previously promised to investigate corruption, but had not lived up to their word.

Mark Levin: Remarkable. We'll be right back.

[COMMERCIAL BREAK]

Mark Levin: Judge Starr, what do you make of the fact that not one of these so-called moderate Democrats voted against impeachment, one of them split the baby, the fellow from Maine, two who had voted against the inquiry in the first place, Gabbard voted "present," but all the rest of them down the line. Do you think they're going to be punished for that in the next election; what do you make of this?

Ken Starr: Well, it's like a scene from Phantom of the Opera, masquerade. Politicians know how to masquerade. What do I need to do to get elected and now I'm in Washington. And then here's what I make of it; the dynamic had to be so powerful within their caucus. The Democratic caucus.

Mark Levin: The pressure.

Ken Starr: The pressure. Are you on the side of and you can imagine the rhetoric the Constitution? Do you want this to be a monarchy? Do you want to bring back King George the third? Do you like this president? I can imagine the conversation got to be such that. Do you want to switch parties that one of our guys is going to switch parties? That's really what "oh, vote your conscience."

Mark Levin: As long as it's the right way.

Ken Starr: Vote your conscience because you're a god.

Mark Levin: As I sit here and think about President Trump and the court orders and so forth that had come through, can you think of a single federal court order that he hasn't complied with?

Ken Starr: No, he has -- the answer is no.

Mark Levin: Can you think of a single federal statute that he has personally violated?

Ken Starr: I know of none. I've not made a study of it, but...

Mark Levin: Can you -- I think we would know by now.

Ken Starr: But presumably --

Mark Levin: It'd be in the report, I would think.

Ken Starr: There is a free press.

Mark Levin: Yes, kind of, but there's a 700-page report.

Ken Starr: Yeah.

Mark Levin: So do you know of any provision of the Constitution -- I'm not talking about where there is a dispute that he has actually violated --

Ken Starr: Right.

Mark Levin: So he hasn't violated the Constitution. He hasn't violated federal law. He hasn't violated a court order. Isn't that really what the impeachment clause is there for? You're conducting yourself in a lawless way so you need to be removed.

Ken Starr: Well, I do think that there is a place for, quote, "abuse of power."

Mark Levin: But what is abuse of power?

Ken Starr: Yeah. Abuse of power is not the expansive, open-ended view of "you used" and this is Noah Feldman, one of the professors who gave, I think, a really elegant articulation to abuse of power for the president's personal interest. Oh, my goodness, think of that.

Mark Levin: It's ridiculous.

Ken Starr: I thought from basic political science, Richard Neustadt's "Presidential Power," that the president is also the head of his political party. So when the president is making decisions, mindful of the politics, including his own reelection, he's abusing his power -- it was just so expansive as to be meaningless. But the other thing -- and this is, I think, the fig leaf, is you, and you kept hearing this -- is the debate unfolded and got more heated, he, the president, used his power in a way that compromised the national security of the United States and I view that as utterly extravagant. But I think there's been a sense of convincing ourselves, attributing good faith to the 31 Democrats and not all of them voted, but I'm talking about the so-called moderate Democrats but maybe it was masquerade and they weren't so moderate after all.

Mark Levin: But as a former prosecutor, independent counsel, former federal judge, you've had many high positions, you look at a pattern of conduct, right? I mean, you can look at specific conduct but a pattern of conduct -- the pattern of conduct by this House under the Democrats has been to seek and destroy. They have issued scores of subpoenas on the president's private finances, his tax returns, his bank records, those of his children, his past businesses that have nothing to do with their oversight function. They've issued scores of subpoenas relating to issues that would never be raised with a president of the United States in the past. Then they're the ones who demand that the president turn them over -- they have looked for any reason imaginable to impeach, to impeach him. We did this Russia collusion thing for over two years. They had a special counsel who came up with nothing. They throw out the emoluments clause. They want to get rid of the electoral college, but they want to uphold the Constitution, mind you. So when you look at this record and you look at this pattern and then you're left with 700 pages of what my people call dreck; I can use an English word but I won't: dreck. It's fair to draw conclusions if you had the man for actually violating the Constitution, violating a statute, violating a quarter, then give it to us. But instead we have this this search and destroy; you think I'm right about that?

Ken Starr: Well, I would characterize it differently, but I'm not disagreeing with you -- the way I characterize it is I think it's been impeachment in search of a rationale and that's what in my faith tradition, I would say it's really unpardonable. It's the unpardonable sin to try to impeach someone and then I want to make one other point in terms of these very intrusive subpoenas and intruding into family finances and so forth, those are what I call bills of attainder.

Mark Levin: What's a bill of attainder?

Ken Starr: A bill of attainder is where the legislature is trying to punish one person as opposed to legislating in a general sense.

Mark Levin: Is that constitutional?

Ken Starr: That is one thing -- it is so unconstitutional that it's one of the very few things that the founding fathers who've been talking about a lot said you can't pass an ex post facto law. It was legal when you did it but we're going to say -- and you cannot do a bill of attainder to single out, Heaven forbid, Mark Levin and here's the punishment we're going to mete out to Mark Levin. This sounds in the nature -- this, a lot of the subpoenas and so forth -- sound in the nature of a bill of attainder without an appropriate legislative function and that's a litigable issue. That's a fancy way of saying a court may say to the House committees doing this "you have no business doing this," sort of "shame on you."

Mark Levin: Folks, don't forget, most weeknights you can join me and Levin TV give us a call at 844-LevinTV to join up 844-LevinTV or go to BlazeTV.com/Mark, BlazeTV.com/Mark; we'd love to have you over there. We'll be right back.

[COMMERCIAL BREAK]

Mark Levin: So, Judge Starr, it's a tough question, really. How do we unravel all this? What do you think?

Ken Starr: You can't unravel. It's done, or it is in the process of being done. So, to draw from the great writer from yesteryear, William Faulkner, "They endured." We have to endure this. And then, to take a lesson from history -- you know, Lincoln, "the mystic chords of memory" -- we have to remember the things have been handled much differently and much better, that there are lessons from Peter Rodino and Nixon and Henry Hyde. And so, we should take a lesson from Churchill: study history. And I hope that's what the American people will now do. This has been a sorry episode in American history, a very nasty period of absolute misinterpretation of facts. People can question the president's judgment in having that phone call, but the idea that this is impeachable is utterly extravagant. It is, as the Wall Street Journal wrote now weeks ago, defining impeachment down. We need to redefine or recapture the original meaning of impeachment.

Mark Levin: Reading history, do you think people who conduct themselves in a tyrannical way -- do you think they're going to read history? Or you're talking about the next generation of politicians?

Ken Starr: I'm looking to the future. The House has been seized by those who were determined 19 minutes after [laughs] the president's inauguration to impeach him. If I may say so, that was a very anti-, unconstitutional -- all thrown into one. That is abuse of power. "We're going to impeach him before he's done anything." Excuse me, you're using your power in a very vicious way. Whatever you think of him -- you don't think well of him; you think ill of him -- it is not your business to use power in such an unprincipled way. Again, shame on you.

Mark Levin: Do you think this is an effort to overthrow the president?

Ken Starr: Absolutely. There's no -- because of the Ukrainian subchapter fitting into the larger volume of "We're going to impeach him." Robert Mueller crashed and burned -- bless his heart, an honorable man -- in July with his testimony. I think the report itself -- there's going to be Russian collusion. All right, if we don't have Russian collusion -- I think his chapter, by the way, disproved -- I mean, that first part of his report disproved it. We don't have that, and then it was, as if manna from heaven, here comes Ukraine.

Mark Levin: All right. We'll be right back.

[COMMERCIAL BREAK]

Mark Levin: What exactly is the role of the chief justice at an impeachment trial?

Ken Starr: Not much. Chief Justice Rehnquist, who presided over Bill Clinton's impeachment, reported afterwards, "I did very little, and I did it very well."

Mark Levin: [laughs]

Ken Starr: He -- Chief Justice Rehnquist had one important ruling. Senator Tom Harkin said, "We're jurors, we senators, but can we consider anything outside the record here of this proceeding?" and Chief Justice Rehnquist, who happened to be quite a student of history, including of impeachment of Andrew Johnson, said, "Essentially, you are not a juror in the criminal justice sense. You can consider anything and everything." So, he will preside, and if there is a need for an evidentiary ruling, which is possible, he'll rule on that, but he'll stay quiet.

Mark Levin: So, basically, the majority has maximum authority.

Ken Starr: Exactly right.

Mark Levin: And there's not a lot the chief justice, past his prologue, is going to do about it.

Ken Starr: And he certainly is not going to be opining on the evidence. He will simply allow the impeachment managers and the president's defense lawyers to do what they're going to do, and --

Mark Levin: That's how it should be, isn't it?

Ken Starr: It is. It is, because the senators are sitting in the ultimate democratic judgment. We get to vote, turn the president out, or reelect the president. They get an even more powerful vote. They can remove a president of the United States elected by the people.

Mark Levin: And they never have, and they won't. It's been a great pleasure. Thank you.

Ken Starr: Thank you, Mark.

Mark Levin: See you next time on "Life, Liberty & Levin."

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