The impeachment test recipe Starr proposed included a dash of this and a bit of that. He cited from the unrelated 1971 Supreme Court case Bivens v. Six Unnamed Agents, which allowed plaintiffs to sue government officers for damages in civil suits pursuant to the constitutional right to be free of unreasonable searches and seizures.

From this case, Starr took a discussion of “factors counseling restraint” in the opinion, for his own test. He argued that, here, two such factors, or reasons not to find against Trump would be that the “articles of impeachment don’t charge a crime” and that there is no bipartisan support for Trump’s removal. But Bivens isn’t on point and the citation was a distraction.

Similarly, Starr suggested that Trump was persecuted unjustly and deprived of the most basic trial rights, although a constitutional process like impeachment is not a criminal proceeding (if it was, the Republican senators serving as judges and jurors wouldn’t be schmoozing with the defense team on trial breaks, among other stark distinctions).

The icing on this ironic cake

Finally, Starr trotted out arguments designed to pull on American heartstrings if not to pass constitutional muster. “I need not remind this high court that in this country minority rights are important. Minority rights should be protected. Equal justice,” he said in Trump’s defense.

The argument was clever but disingenuous. There are “protected classes” in the law, based on a history of discrimination, and it is true that there aren’t very many presidents. But that doesn’t make Trump a minority in the legal sense. He’s the executive, which is nothing like being a member of a group that’s traditionally been disenfranchised based on race, age, sex, religion, or national origins, say.

Doubling down on the deliberately confusing rhetoric, Starr recalled the first presidential impeachment trial of Andrew Johnson in 1868. “The president [was] denied the basic rights that have been afforded to every single accused president in the history of the republic, even to the racist Andrew Johnson seeking to undo Mr. Lincoln’s great legacy. He got those rights. But not here.”

Starr’s ironic and legally questionable take was offered as an “exit ramp” to senators worried about seeming to voters like they are ignoring Trump’s alleged constitutional violations. Starr explained, “Members of this body full-well understand that a presidential impeachment is tantamount to domestic war albeit thankfully, protected by our beloved first amendment, a war of words and a war of ideas. But it’s filled with acrimony and it divides the country like nothing else. Those of us who lived through the Clinton impeachment understand that at a deep and personal way.”

📬 Sign up for the Daily Brief

Our free, fast, and fun briefing on the global economy, delivered every weekday morning.