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What we really should remember Ken Starr for

Over the last 20 years or so, Congress, particularly when controlled by the GOP, has transformed from a legislative body into an investigative one. 

One of the people who played a central role in institutionalizing the culture of endless investigations was Kenneth Starr, who died Tuesday at 76 due to complications following surgery. Starr was a longtime Republican operative, judge and, in his later years, university president and conservative commentator. However, he will be most remembered for his role as independent counsel during President Bill Clinton’s administration. Starr served in that capacity from 1994-99.

Because Congress has always been a check on the executive branch, oversight is naturally a part of its mission. But in recent years, investigating has become a way for it to limit executive power by setting the agenda for the president.

Because Congress has always been a check on the executive branch, oversight is naturally a part of its mission. But in recent years, investigating has become a way for it to limit executive power by setting the agenda for the president. If the president and an administration have to respond to a series of investigations, they are more likely to take their focus off of other issues of governance.

The relevance and legitimacy of these investigations vary and are often seen through partisan lenses. For example, Democrats generally viewed the first impeachment case against Donald Trump as legitimate while seeing the investigation of Hillary Clinton after the tragedy in Benghazi as a politically motivated waste of time. Republicans, however, viewed those events in precisely the opposite way.

Starr was not the first independent counsel charged with investigating a presidential scandal. Among his notable predecessors was Archibald Cox, the Watergate independent counsel. About 15 years later, Lawrence Walsh served as special prosecutor during Ronald Reagan’s administration, focusing primarily on the Iran-Contra scandal. 

What made Starr unusual was that his portfolio was so broad. His investigation started in 1994, probing Bill and Hillary Clinton’s investment in some property in Arkansas, which came to be known as Whitewater and yielded no proof of wrongdoing by the Clintons. That investigation led to addressing questions far afield from cronyism, corruption or real estate in Arkansas.

The issue that led to Bill Clinton’s 1998 impeachment was not one of financial corruption. Instead, Starr turned his attention to Clinton’s affair with White House intern Monica Lewinsky and the extent to which Clinton was truthful when he testified about it. An investigation of real estate dealings shifted to the president’s infidelity, not because the two were connected but because Starr interpreted his mandate extremely broadly.

That was a turning point in the use of congressional investigations. Republicans in Congress, particularly following Clinton’s re-election in 1996, used an investigation to try to reign in a popular president. But that plan backfired. When the Republicans lost seats in the House and failed to pick up any Senate seats in the 1998 midterm elections, it proved that the strong 1990s economy was more important to voters than whatever Starr and the GOP could dig up on the Clintons. 

Nonetheless, the approach remained a tool that the Republicans continued using, generating media and political support rather than indictments or impeachment.

We saw it again during the Obama administration, which, by most measures, was one of the most ethical in modern history. Still, beginning in 2011, after the GOP won control of the House in the 2010 midterm election, the Republican-led Congress investigated the administration for allegedly using the IRS for political purposes, its support for the energy company Solyndra, and a program run by the  Bureau of Alcohol, Tobacco, Firearms and Explosive that tried to track illegal gun sales near the southern border. These were better understood as policy missteps than presidential scandals, but that was the framework that the GOP found more effective. 

The most well-known and time-consuming investigation of the Obama administration was around Benghazi. It also targeted 2016 Democratic presidential nominee Hillary Clinton, who had been secretary of state in 2012 when the attacks on Benghazi occurred. Benghazi was investigated by five standing House committees and one select committee. The select committee investigation lasted more than two years and cost almost $8 million. It’s report found that the Obama administration had been incompetent, but it did not lead to any indictments. For years, the GOP-led Congress focused on investigations rather than trying to pass legislation or govern.

There are certainly times when investigations are appropriate, but problems arise when political parties use them not as a tool to get information from the administration but simply to take up the energy and time of key administration personnel.

If, as seems likely, the Republicans win back the House this November, they have signaled a willingness to begin investigations on everything from Nancy Pelosi’s role in the Jan. 6, 2021, insurrection attempt — yes, you read that right — to the withdrawal of U.S troops in Afghanistan and, of course, Hunter Biden’s laptop. Many Republicans in Congress erroneously believe that Pelosi had some control over getting police to the Capitol as Trump supporters breached it. These events are all better understood as political differences or, in the case of the Capitol Police, conservative fantasy rather than scandals worthy of investigation. They would completely sidetrack President Joe Biden’s administration while keeping the GOP base mobilized.

There are certainly times when investigations are appropriate, but  problems arise when political parties use them not as a tool to get information from the administration but simply to take up the energy and time of key administration personnel. The question of which investigations are merited and which are not is subjective, but Congress has lost its way when investigations replace passing laws that help people across the U.S. 

The right — both in office and in the media ­— love to call the Jan. 6 investigation a political witch hunt. However, a basic understanding of reality suggests that the attack on the Capitol is worth investigating while impeaching Biden for the mishandling of the withdrawal from Afghanistan is absurd. Congressional Republicans have already introduced articles of impeachment against Biden, all but ensuring a lengthy investigation of a poorly implemented policy that does not come close to being an impeachable offense.

In 2023, if House Republicans are dominating the news by exploring what Pelosi said to the Capitol Police or again relitigating the 2020 election and investigating election fraud that has been proven baseless, we should remember the role Starr played in it all. He helped to create a template that uses investigating not as a way to get to the bottom of a scandal but to weaken, distract and harass a presidential administration. That is a big part of the legacy he left.

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