Supreme Court nominee Brett Kavanaugh took an aggressive stance toward White House investigations as a top lieutenant to independent counsel Ken Starr as they sifted through President Bill Clinton’s dirty laundry during the 1990s.
Back then, Kavanaugh played a pivotal role crafting legal arguments about how to gather evidence from a defensive White House and also in determining the best way to hand findings to Congress that could potentially lead to impeachment proceedings.
But it’s Kavanaugh’s more recent writings and comments warning about the dangers of such sprawling probes — including that sitting presidents should not be subjected to criminal investigations — that are already being weaponized by Democrats eager to protect special counsel Robert Mueller’s work and sink President Donald Trump’s Supreme Court nominee.
“Judge Kavanaugh’s background as a partisan political operative seems exactly like the kind of man President Trump would want on the Supreme Court if legal issues from the Mueller probe arise, deferential to a fault to executive authority, and with a long track record of partisan politics,” Senate Minority Leader Chuck Schumer said Tuesday during floor remarks.
Rep. Adam Schiff, the top Democrat on the House Intelligence Committee, also warned of Kavanaugh’s shifting stance on White House investigations.
“Ever mindful of his self-interest, Trump has picked Brett Kavanaugh, who once wrote that he didn’t believe a sitting President should be subject to criminal investigation or prosecution,” Schiff tweeted Monday.
While the White House has downplayed Kavanaugh’s extensive background in the most high-profile presidential investigation in decades, the judge’s views are getting a fresh airing, both as he prepares for a bruising confirmation fight, and with the prospect that one or more cases related to Mueller’s Russia investigation could end up before him if he’s seated on the Supreme Court.
Kavanaugh got his start as an investigator into White House scandal in the fall of 1994, when Starr, the newly named Whitewater independent counsel, hired him as an assistant prosecutor in what was then still largely a probe into the Democratic president’s real estate deals back in Arkansas. As Starr’s jurisdiction expanded, so did Kavanaugh’s, and the young lawyer had the job of reexamining the 1993 suicide of Clinton White House deputy counsel Vince Foster.
During his three-plus years on Starr’s controversial team, Kavanaugh had several other important roles. In a quest to obtain notes from Foster’s private attorney, he was tapped to argue before the Supreme Court — albeit unsuccessfully — that attorney-client privilege should not pertain to a client who is dead.
Kavanaugh also had a key role writing a section of Starr’s final report documenting the president’s affair with White House intern Monica Lewinsky and Clinton’s efforts to conceal the relationship. According to journalist Bob Woodward’s 1999 book “Shadow: Five Presidents and the Legacy of Watergate,” Kavanaugh and another Starr attorney objected to an early draft that included graphic sexual details about the relationship — a move that showed some early reservations about the risk of such investigations overstepping their mandate.
“The narrative shows how pathetic Clinton is,” Kavanaugh argued to Starr, according to the Woodward book, “that he needs therapy, not removal. It’s a sad story. Our job is not to get Clinton out. It is just to give information.” But the independent counsel resisted making the change. “I love the narrative!” Starr said.
Kavanaugh went on a self-reflection tour after he fully left Starr’s team in 1998. While he told ABC’s “20/20” that fall that “no one” on Starr’s team thought differently about the need to investigate evidence the president had an affair with Lewinsky, he soon started spelling out faults with the wider process.
In a 1998 Georgetown Law Journal article, Kavanaugh called for the demise of the underlying post-Watergate statute that had been used to authorize the Starr probe, saying the approach in which a three-judge panel had the job of picking the investigator “creates, almost by definition, a scenario whereby the President and the independent counsel are adversaries.”
Instead, he suggested Congress should give the president “absolute discretion” in deciding whether and when to name an independent counsel, with the person picked subject to Senate confirmation. To avoid runaway probes, Kavanaugh called for Congress to pass a law putting the responsibility for establishing an investigation’s jurisdiction into the hands of the president and attorney general, subject to Capitol Hill oversight.
Kavanaugh also urged lawmakers to eliminate the statutory reporting requirement that had led to the controversial Starr Report, arguing that the mandate “adds great time and expense to independent counsel investigations, and the reports are inevitably viewed as political documents.”
While Kavanaugh backed a change in law declaring a president could invoke executive privilege for matters of national security only when presented with a grand jury or criminal trial subpoena, he did endorse another idea that would shift the balance of power toward the White House: making it clear a sitting president couldn’t be indicted while in office.
“Removal of the President is a process inextricably intertwined with its seismic political effects,” he wrote. “Any investigation that might conceivably result in the removal of the President cannot be separated from the dramatic and drastic consequences that would ensue. This threat inevitably causes the President to treat the special counsel as a dangerous adversary instead of as a federal prosecutor seeking to root out criminality.”
After Kavanaugh had begun serving a life-time appointment as a judge on the U.S. Court of Appeals in Washington, he again weighed in on the problems with investigations that can befall a White House. Harkening back to the Clinton era, Kavanaugh wrote in the Minnesota Law Review that he had an even larger change of heart about the immunity a president should enjoy while in office.
“Like many Americans at that time, I believed that the President should be required to shoulder the same obligations that we all carry,” he wrote. “But in retrospect, that seems a mistake. Looking back to the late 1990s, for example, the nation certainly would have been better off if President Clinton …read more
Read more here: Kavanaugh’s words on presidential probes come back to haunt him