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Ken Starr: Impeaching Trump post-presidency 'is a flagrant violation' of the Constitution

Starr says it is a constitutional violation for the Senate to hold an impeachment trial without the chief justice.

Updated: February 5, 2021 - 6:10pm

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The impending Senate impeachment trial of former President Trump "is a flagrant violation of the text, structure and history of our Constitution, and of the historical example of the Nixon resignation, and the cessation at that stage in the House of Representatives of impeachment inquiry," said former appellate judge and U.S. Solicitor General Ken Starr Thursday in an interview on the John Solomon Reports podcast.

Starr, who represented then-President Trump in his first impeachment trial, suspects that Chief Justice of the Supreme Court John Roberts has opted out of presiding over the forthcoming Senate trial on constitutional grounds.

"I'm going to draw an inference," Starr said, "and that is, the chief justice of the United States reads the Constitution and says, 'I have no authority to preside. No authority whatsoever. In fact, it would be, I believe, a violation of the Constitution for the chief justice of the United States to come preside over the trial of a former president, because the Constitution is very clear: In cases of the impeachment of the President of the United States, the chief justice shall preside."

Starr would like to see a formalized response from the chief justice to confirm the impeachment trial's unconstitutionality.

"Let's have someone send a letter to the chief justice of the United States saying, 'Excuse me, you have a duty to be here,'" Starr said. "And I would hope that the chief justice would respond in a formal way in these proceedings to say, 'I do not have authority because this is not the sitting president of the United States.'"

Noting that 45 Republican senators have already voted that they believe this impeachment trial is unconstitutional, Starr said he hopes all senators "of goodwill … who have taken an oath to defend, to support and defend the Constitution of the United States, would take that second look and really leave, for once, politics at the bloody door, right?

"Just leave it at the door, read the text of the Constitution, reflect on exactly what's about to happen, which I think is a pernicious — it's not only unconstitutional — it's a pernicious precedent, because as someone has recently said, and they were serious about it, 'Alright, then let's impeach Hillary Rodham Clinton. Oh, well, let's impeach Barack Obama.'"

"I think this is constitutionally flagrant and should be dismissed for lack of jurisdiction," Starr added, "which is just a fancy way of saying lack of authority on the part of the Senate, because the president of the United States is not now the subject of impeachment. It's a former president, they've lost their authority on January 20."

Starr cited the precedent of the impeachment of President Nixon.

"Once Richard Nixon resigned, the House of Representatives stopped on a dime," he recalled. "They didn't continue them, they didn't debate, 'Well, wait a second, we've had all these hearings. The House Judiciary Committee, bipartisan, has voted out articles of impeachment, we need to go on, and we need to make sure Richard Nixon never runs for any office again.' Sound familiar? No, they stopped because they read their Constitution. The impeachment is about removal and then possible disqualification."

Starr explained that what the Senate would be doing with this impeachment trial is using it as a bill of attainder, which is prohibited by the Constitution.

"If the Senate goes forward, what they are toying with is what I consider a bill of attainder," he said. "They can't remove President Trump from office, he has left in accordance with with law, he left peacefully and lawfully. So, what are they doing? They are seeking to visit punishment on the head of a former government official, the former president of the United States. I believe that constitutes a constitutionally forbidden bill of attainder."