Whether he was strategizing ways to pin down President Bill Clinton on his sexual indiscretions or charting the end of the whole independent counsel investigation, Brett Kavanaugh took a bold approach.
It was 20 years ago, he was 33 years old, and after working with independent counsel Ken Starr for nearly four years, he had definite ideas of how Clinton had failed the nation. Kavanaugh, a federal appeals court judge, is now the Supreme Court choice of President Donald Trump, who is himself under investigation by a special counsel.
Kavanaugh’s work in the Clinton probe, particularly some of its more salacious elements involving intern Monica Lewinsky, and his evolving views about shielding a president – a turn-around since the Clinton era – are likely to be scrutinized when he appears before the Senate Judiciary Committee on September 4.
On Monday, Kavanaugh met with Sen. Dianne Feinstein, the top Democrat on the Judiciary Committee, who has been highly critical of both Kavanaugh and the selectively released documents, particularly from Kavanaugh’s years in the George W. Bush administration. Democrats want more of Kavanaugh’s files made public.
Recently opened National Archives records from the 1990s independent counsel probe reveal some of Kavanaugh’s actions, including his aggressive pursuit of documents tied to Vince Foster, a top Clinton administration lawyer who committed suicide, and broad concern for how Starr’s Lewinsky findings could taint the reputation of Starr and the lawyers working with him.
The September 1998 Starr Report, which described the encounters between Clinton and Lewinsky down to the details of their oral sex and evidence of a semen-stained dress, shocked the nation as it was disseminated over the Internet. In one of the more attention-getting memos now available to the public, Kavanaugh blasts Clinton and recommends hard-hitting questions, including about specific acts of oral sex and masturbation.
“The President has disgraced his Office, the legal system, and the American people by having sex with a 22-year-old intern and turning her life into shambles – callous and disgusting behavior that has somehow gotten lost in the shuffle,” Kavanaugh wrote in an August 15, 1998, memo to Starr and other lawyers.
“He should be forced to account for all of that and to defend his actions. It may not be our job to impose sanctions on him, but it is our job to make his pattern of revolting behavior clear – piece by painful piece,” he wrote.
However, it’s the questions raised by the Clinton episode about subpoenaing and indicting a sitting president that are more relevant to today’s investigation of Trump by special counsel Robert Mueller.
Kavanaugh, who as a Supreme Court justice could rule on disputes arising from the Mueller investigation, has suggested that he would be far more protective of the presidency than he was in the 1990s. He has argued that a president should be shielded from any criminal or civil investigation until he leaves office.
In his July questionnaire to the Senate, Kavanaugh showed an awareness of the lingering controversy over the Starr report’s scandalous elements: “As I have stated publicly before, I regret that the House of Representatives did not handle the report in a way that would have kept sensitive details in the report from public disclosure.”
Questioning the President
It was nearly a quarter century ago that a three-judge panel appointed Starr, a former federal judge and US solicitor general, to investigate Clinton under a now-defunct law known as the Ethics in Government Act. That post-Watergate law was intended to ensure independent investigations of the executive branch and prevent a repeat of the 1973 “Saturday Night Massacre” incident when President Richard Nixon ordered the firing of Watergate prosecutor Archibald Cox.
Starr’s initial mission related to Bill and Hillary Clinton’s Whitewater land deal. The widening probe also covered the suicide death of Foster, who had been examining a controversial 1993 dismissal of White House travel office employees.
Hired by Starr in 1994, Kavanaugh focused on Foster’s death and tried to obtain from his lawyer materials related to their related the lawyer’s conversations with Foster. His quest went all the way to the US Supreme Court, where Kavanaugh argued that the attorney-client privilege should expire with the death of a client. The justices ruled 6-3 against him in 1998.
Later that year, Kavanaugh took a leading role in suggesting questions for Starr before his team was to take testimony from Clinton, who had denied any wrongdoing with Lewinsky.
The memo, parts of which have been public since it was used in a 2010 book by Ken Gormley, “The Death of American Virtue: Clinton vs. Starr,” was released in full on Monday by the National Archives.
“After reflecting this evening, I am strongly opposed to giving the President any ‘break’” Kavanaugh wrote, ” … unless before his questioning on Monday, he either i) resigns or ii) confesses perjury and issues a public apology to you,” Kavanaugh wrote in the memo with the subject line “Slack for the President?”
“I have tried hard to bend over backwards and to be fair to him and to think of all reasonable defenses to his pattern of behavior,” he wrote. “In the end, I am convinced that there really are none. The idea of going easy on him at the questioning is thus abhorrent to me.”
Kavanaugh listed exceedingly graphic questions that he believed Clinton could be asked.
Starr told CNN in a recent interview that such level of specificity was required for the investigation and that many lawyers in the office were strategizing on how to proceed with the questioning of the President.
“Brett was a superb lawyer who was part of an office-wide effort to deal with the unfortunate fact that the President was aggressively and adamantly denying the nature of the (Lewinsky) relationship,” Starr said. “We had to determine whether he lied under oath, and that required specificity.”
Regarding some of the report’s details, Starr added, “There was a lively discussion within the office of what should be included. Brett was a voice arguing in favor of less, rather than more, in terms of the specificity of detail.”
In a 1999 memo recently made public by the National Archives, Kavanaugh wrote, “I believe we should never express any regret over the contents of the [Clinton-Lewinsky] referral itself, as the referral simply summarized, organized, and analyzed the relevant evidence.” Yet he implored colleagues to note in any public discussions that they did not know “Congress would simply dump the referral onto the Internet … . This is important for Ken’s reputation, for that of the Office, and for all of us individually.”
In a memo a few weeks earlier, after the Starr report had been issued, Kavanaugh laid out ways for closing out the investigation, asserting, “it seems to me that we need to take bold but reasoned steps to bring things to a close … even supporters of our mission complain, with at least some justification, that we have not proceeded with sufficient expedition.”
Kavanaugh and the independent counsel law
The House of Representatives voted to impeach Clinton in December 1998, largely for lying and obstruction of justice as he covered up his sexual activities, but the Senate in January 1999 failed to convict and Clinton served out his second term.
Around that time, Kavanaugh sent a memo to his colleagues recommending they tell the attorney general that the independent counsel team did not believe the President should be criminally indicted while in office. That consensus aligned with longstanding Justice Department policy.
After he left the post, Kavanaugh began challenging the overall independent counsel mission.
“I think the best system is to have the administration, itself, pick the person who is going to be the special prosecutor,” Kavanaugh said on CNN in 1999. “That makes it impossible for the administration or the people under the investigation then to turn around and say, ‘That person’s my political opponent, because they will have picked the person.’”
The Clinton team vigorously argued that the Starr investigation was fueled by partisanship. But in the current investigation of Trump, the fact that his Justice Department appointed Mueller has not stopped Trump from attacking him.
Congress did not renew the independent counsel statute, which expired in 1999, and Mueller, a former FBI director, was appointed in 2017 by Deputy Attorney General Rod Rosenstein. (Attorney General Jeff Sessions, who worked on the Trump campaign, had recused himself.) Unlike Starr, whose appointment was independent of the Justice Department, special counsel Mueller reports to the department. At the close of his investigation, he will make a report to the department.
Even though it became a moot point, Kavanaugh criticized the 1988 Supreme Court ruling, Morrison v. Olson, that had upheld the independent counsel statute against a challenge that it breached executive power.
Kavanaugh later went further to distance himself him from the prosecution of a president. In a 2009 law review essay, he proposed that a president be fully protected from criminal or civil investigations until his term expires. He acknowledged that such a view conflicted with a 1997 Supreme Court ruling, Clinton v. Jones, and recommended Congress pass a statute dictating that lawsuits be deferred until a president is out of office.
Kavanaugh acknowledged, “This is not something I necessarily thought in the 1980s or 1990s.”