openpolitics.com

Ken Starr can look like a Pixar character: grandfatherly, dimpled, with long pillowy cheeks and cunicular teeth. It’s not distinctive; it’s the kind of face you swear you’ve seen many times. Indeed, you probably have, because if you examine a certain subset of American politics, he’s everywhere. Look at his Supreme Court connections alone: John Roberts once served under Starr. Brett Kavanaugh was his mentee. He was pals with Antonin Scalia, vetted Sandra Day O’Connor, and calls Clarence Thomas “a whole lot of fun.” Theodore Olson (the lawyer who’d go on to represent George W. Bush in Bush v. Gore and become his solicitor general) spent that fateful election night watching the results come in at his house. Ken Starr is basically the Forrest Gump of Republican America. You might not have noticed, but he’s usually around. Right now, for instance, he’s on the advisory board of Turning Point USA, a conservative activist group started by Charlie Kirk. You might also know him as a Fox News commentator or scandal-ridden ex–university president, as a member of Trump’s first impeachment team, or, most famously, as the independent counsel in the Bill Clinton years whose combination of piousness and prurience taught an entire generation of American children about oral sex.

It’s that five-year stewardship of the Clinton investigation that made Ken Starr a household name. And it’s against those five years that everything he’s done since must be measured. The sporadic headlines he’s since generated in some ways reflect the general decline of his party. Once criticized for a sense of rectitude so priggish it began to appear perverse, Starr course-corrected by defending Jeffrey Epstein and then Donald Trump. The guy who took a popular president down a peg for lying about sex lost his own job as a popular university president for presiding over a system that shielded rapists and ignored victims. And now the great investigator of Clintonian infidelity stands accused of having an extramarital affair himself.

The owner of one of the most famous conservative “brands” has mainly succeeding at muddling it. Starr’s swampward trajectory corresponds roughly to the rise of reactionary populism, but his individual decisions can still surprise; spurts of pro bono work and disquisitions on faith serve as occasional reminders—against a seamy backdrop—of what Starr’s profile used to be. It has been argued that the man many knew as a bland and scrupulously correct son of a minister changed during his stint as independent counsel—that in the course of becoming a public figure while also learning on the fly how to be a prosecutor, he became more of a persecutor too, less concerned with ethical constraints while technically respecting legal ones. (Mostly. Sam Dash, who was lead counsel to the Senate’s Watergate Committee and acted as special ethics adviser to Starr’s team, resigned in protest over what he saw as Starr’s decision to act as an “aggressive advocate” for impeachment.)

That increasingly appetitive (or deranged) prosecutorial approach earned Starr so much contempt that it has perhaps overshadowed some of his less controversial qualities. Friends and associates unfailingly describe Starr as pleasant, for instance. They also describe him as extremely hardworking. He is rarely, however, called brilliant, and this is surprising: The man almost became a Supreme Court justice. According to a 1998 Michael Winerip piece in the New York Times Magazine, Starr’s name may have been scrubbed from the Bush administration’s short list in 1990 because Starr was considered—at least then—a mite too ethical. As the senior Bush’s solicitor general, he’d sided with whistleblowers against the administration that hired him in a case involving defense contractors. The administration did not care for that. Here’s one way to gauge what this earlier version of Starr was like: The folks who chose David Souter for their nominee to the Supreme Court dismissed Starr as insufficiently conservative. He’d been faulted with, among other things, failing to disclose O’Connor’s pro-choice views to his fellow Republicans when he vetted her. It’s hard to imagine how different Starr’s public profile might be today if things had gone differently.

For someone with such Zelig-like ubiquity, not much has been written about his early years. Before the Clinton Whitewater investigation, Starr, who clerked for Chief Justice Warren Burger, was rising in Republican circles with impressive and perhaps questionable speed. As Winerip writes, “Starr had to learn as he went. He became an Appeals Court judge in 1983, though he had never been a lower court judge; the Solicitor General—the Government’s lawyer to the Supreme Court—in 1989, though he had never argued before the Supreme Court; the independent counsel in 1994, though he had never been a prosecutor.” This trend would continue after his stint investigating the Clintons: He was hired to helm Pepperdine’s law school and then Baylor University despite having no administrative experience to speak of. (Perhaps, given the sexual assault scandal that would later consume Baylor, experience matters.)

If the Clinton years gave him a taste of real fame—he was Time’s Man of the Year in 1998, along with Bill Clinton—the aftermath saw him trying to capitalize on it. Starr became, if not quite a mercenary himself, the mercenaries’ lawyer. He’d done plenty of that before, of course: He was profitably defending tobacco companies even while he was investigating Clinton (who was trying to regulate them). But his years digging into the president empowered him to use his prestige in a slightly different way—as the guy who maybe knew a guy. When Whitewater needed investigating, Starr had been there to do it and his reasons were at least nominally public-spirited. But when Blackwater needed defending in 2006, he was there to do that too—this time by joining a lawsuit that had been well underway in order to petition John Roberts, his former deputy in the solicitor general’s office, who had only recently joined the Supreme Court. Marc Miles, the attorney representing the families of the four Blackwater contractors killed in Iraq, said at the time, “I think that Blackwater has brought in Kenneth Starr to somehow leverage a political connection to help them succeed in a case where they can’t win on the merits.”

If this was the case, it didn’t work—Roberts rejected his former superior’s argument that Blackwater should be “constitutionally immune” to the lawsuit. (Roberts would rule in Starr’s favor the same year in Morse v. Frederick.) It wouldn’t be the last time Starr appeared to peddle his influence. When Jeffrey Epstein needed help evading charges for raping and trafficking minors in 2007, the Texan with a reputation for primness joined the pedophile’s legal team and, as described in reporter Julie K. Brown’s book, became one of the prime architects of a defense notable for its innovative savagery, which included attacking prosecutors and impugning their motives. Starr attempted to leverage his contacts in the Justice Department to try to get the federal charges dropped. It also didn’t work. But the plea deal Epstein got was famously and shockingly lenient, thanks in no small part to Starr’s efforts.

And perhaps most incongruently, when the most prolific liar in American presidential history—who paid the women he had extramarital sex with to shut them up—faced impeachment charges in 2019, Starr didn’t just rush to defend him (even though he’d once called Starr a lunatic). The author of the Starr Report, which even Diane Sawyer derided as “demented pornography for puritans,” showed up in a black cowboy hat and a trenchcoat—dressed as an almost literal black-hat version of the finger-wagging disciplinarian of errant presidents he used to be.

It’s a discordant set of jobs for someone who had built a monumental and much-mocked reputation for prudish propriety. In a plot turn that would be more poetic if it weren’t so unsurprising, it emerged this month that Starr, that avatar of good Christian values who once stood for everything the Clintons weren’t, had himself allegedly conducted an extramarital affair with a woman who had once worked closely with him. (She says it began in 2009, roughly a decade after his investigation of Clinton concluded.)

The woman, Judi Hershman, explains she is disclosing her affair with Starr (which she’d planned to take to the grave) because of his response to a story she wrote for Slate about a disturbing encounter with Brett Kavanaugh that she’d informed Starr about back in 1998. She wrote that Kavanaugh had screamed at her with “a deranged fury” when he found her working in a conference room. (In her Medium piece she adds that Starr’s response when she requested an apology from Kavanaugh was: “I’m apologizing to you for him. This is it.”) Starr’s comment on Hershman’s story in Slate was “I do not recall any mention of any incident involving Brett Kavanaugh.” But the simple denial was not enough. In what Hershman calls an “embellishment,” he added: “To the contrary, throughout his service in the independent counsel’s office, now-Justice Kavanaugh comported himself at all times with high professionalism and respect toward all our colleagues.”

We know now that this is the basic template for how Ken Starr responds to a crisis because he was recorded doing it. In a 2016 TV interview for KWTX News 10, Starr was asked about an email a woman had sent him on Nov. 3, 2015—and there the email was, in full view, bearing his email address—in which she reported being raped. The subject line, “I Was Raped at Baylor,” seems hard to overlook. Starr’s first response squishily acknowledges this: “I honestly may have. I’m not denying that I saw it.” But then a woman named Merrie Spaeth, a communications consultant and family friend he’d brought with him (and who had been Hershman’s boss during the Clinton investigation), interrupts to ask the news director not to use that portion of the interview. He refuses and she takes Starr to another room to confer. “She needs to ask you that question again. Whether you do it on camera or not it’s up to you,” Spaeth says to Starr when they return. Starr then says to the camera: “All I’m gonna say is I honestly have no recollection of that.” He then turns to Spaeth. “Is that OK?” But then he tries again and, as with his response to Hershman, he doesn’t leave well enough alone. He adds. “I honestly have no recollection of seeing such an email and I believe that I would remember seeing such an email” (emphasis mine). By 2018, two years after he’d been ousted as university president, the line had evolved beyond all recognition: “Unfortunately—and this is going to sound like an apologia, but it is the absolute truth—never was it brought to my attention that there were these issues.”Is it interesting that a man who spent years trying to prove that an evasive and lawyerly president lied ended up agonizing over how exactly to legalistically phrase his own failures? No! It is only moderately more interesting that the Starr marriage—which openly courted comparisons to the Clintons’—now appears to be in the position it smugly criticized: In 1999, Alice Starr famously said she’d divorce her husband if she were in Hillary’s place, remarking that she would “rather not be married to someone who doesn’t love me enough to remain faithful.” “We took a vow to be faithful to one another when we married,″ she said of her own marriage, adding that they’d “lived up to that vow.″ In response to Hershman’s affair allegation, Alice Starr provided a statement through Merrie Spaeth affirming her marriage to Ken: “We remain devoted to each other and to our beautiful family. Judi Nardella Hershman was Alice’s friend. Alice set up jobs and board appointments for her in McLean, Virginia.” (Ken Starr himself had no comment, according to Spaeth, who also added that because of how busy the independent counsel’s office was in the days before the 1998 House Judiciary Committee hearing, it would have been impossible for Judi Hershman to have found herself alone in a conference room with Brett Kavanaugh.)

That Alice is standing by her man is no surprise; when Ken began his tenure at Baylor, she said in an interview, “He can’t do anything but tell the truth—ethics are extremely important.” What those ethics are remains something of a mystery. Starr’s post-Clinton priorities were interesting and not altogether predictable: They have ranged from appealing for clemency for death row inmates in 2005 and 2006 to defending Epstein in 2007 to campaigning against same-sex marriage in 2008 to signing (in 2013) a letter asking that a teacher who pleaded guilty to molesting five female students get no jail time, just community service.

Put differently, Starr has occupied some strange spaces in American controversies besides the one he’s best known for. He supported Merrick Garland’s nomination to the Supreme Court, for instance, but he also testified about “troubling questions” at Sen. Ron Johnson’s circus of a Senate hearing on so-called election irregularities. He’s a little too odd to classify as a mere hypocrite. Even his condemnations take some surprising turns: In a chapter of his latest book, Starr comes perilously close to condoning the removal of Confederate monuments: “It’s one thing to tear down monuments of Confederate generals, as military champions of the unspeakable institution of slavery. Whether you like these desecrations or not, that reaction is understandable, albeit lawless.”

Starr’s isn’t a story of straight decline. He never really left, for one thing; that makes a comeback trickier. But neither has he ascended to become a fixture in the conservative firmament. The way he engages with modern conservatism is almost hilariously anti-strategic: Though certainly capable of partisan bile, he’s at other times so quaintly bookish that he barely seems to understand his party at all. When he addressed the young Trump-crazed Republicans at the 2019 Turning Point USA summit (other speakers included Sean Hannity, Kimberly Guilfoyle, and Donald Trump Jr., to give you a sense), he interrupted the music and the lights to ask everyone to sing “My Country, ’Tis of Thee” and then delivered a lecture encouraging them to study history, including the writings of Louis Brandeis and Lincoln’s second inaugural address.* It is bold—in a mild way—to lecture about history when you know you’re up against Guilfoyle’s incantatory shouts. It might also explain the limits of his influence. Then again, so might the lack of a consistent agenda. Starr’s lawyering has been deployed in the service of both conventional and distasteful efforts but doesn’t coalesce into any particularly cohesive sense of purpose. And while his books register a real desire to provide intellectual backing for conservative impulses, what little ideology he has—to the extent that it’s faith-based—is compromised by his own hypocrisy.

Starr does still seem to enjoy the spotlight even if he’s not especially gifted at keeping it. Thirty years after he shot to national fame, he hasn’t lost the ability to provoke an “Oh, him!” reaction when his name comes up, and Trump’s impeachments presented not one but two occasions for him to reemerge to the broader public as a voice of authority on the thing he has long been most famous for. But his interventions on those fronts have been strangely muddled. He obsessed over the finer points governing special counsels in a magazine article but then cut an absurd figure in a black cowboy hat at Trump’s side. Having made an impression neither as an intellectual nor as a firebrand, he’s now on the board of an organization fiercely touting an anti-vaccination agenda. He’s on Fox News. And he’s earning headlines for allegedly cheating on his wife. It’s not exactly the Supreme Court.