Kavanaugh’s past may shape future
He said in ’98 that lies, cover-up could spur impeachment
WASHINGTON — The young attorney decided the president deserved to be forced from office for “his pattern of revolting behavior” and the “sheer number of his wrongful acts.”
“The president has disgraced his office. … He has lied to his aides. He has lied to the American people,” Brett Kavanaugh wrote in a 1998 memo to his colleagues. “I’m strongly opposed to giving (him) any ‘break’ … unless he either resigns or … issues a public apology.”
Kavanaugh, a fast-rising Republican legal star, then 33, went back to work on a 132-page memo to his boss, independent counsel Kenneth Starr, that outlined the grounds for impeaching President Bill Clinton.
It was 20 years ago this month that Kavanaugh, President Donald Trump’s Supreme Court nominee, set out his broad view of obstruction of justice and of what constitutes an impeachable offense, arguing the president could be removed from office even for a rarely charged crime — in this case, lying under oath in a civil deposition, to deny a sexual affair with a 22-year-old White House intern.
By repeating false stories for months, lying to the public and his aides, trying to cover up the affair with Monica Lewinsky and helping her find a job in New York, the president, Kavanaugh argued, engaged in “a conspiracy to obstruct justice.”
Now as Kavanaugh prepares to go before the Senate on Sept. 4 for his confirmation hearing, there is again talk of impeachment in Washington.
Last week, Trump was implicated in a scheme to pay hush money shortly before the 2016 election to two women to cover up alleged sexual affairs. His former attorney, Michael Cohen, has pleaded guilty to violating campaign finance laws and accused Trump of directing him to make the payments. Trump has publicly denied the women’s claims and denied knowing about the secret payments in advance, though he can be heard on tape discussing how to make them.
Trump is also under investigation by special counsel Robert Mueller for possible collusion between his campaign and Russia, and obstruction of justice in trying to hinder that probe.
“The Kavanaugh argument in the Starr Report is highly relevant now,” says New York lawyer David Lurie, because it portrayed a president’s false statements and public denials as reflecting a pattern of obstructing justice. If investigators “wanted a template for charging the president with acts of obstruction meriting impeachment, they could do worse than using sections of the Starr Report drafted by Kavanaugh,” Lurie said.
The Constitution says the president can be impeached for “treason, bribery and other high crimes and misdemeanors.” While scholars disagree on how to define an offense that warrants impeachment, most maintain it involves a significant abuse of power by the president.
In 1974, President Richard Nixon faced impeachment for obstruction of justice for arranging to pay hush money to the burglars who broke into the Watergate offices of the Democratic National Committee, and for intervening with the CIA and the FBI to thwart the investigation.
Starr’s investigators did not have evidence that Clinton used the machinery of the government to cover up his crimes as Nixon did. They did, however, have evidence he had lied when questioned under oath by lawyers for Paula Jones, who had sued him for sexual harassment.
Critics of Trump say he could be vulnerable to obstruction of justice charges for firing FBI Director James Comey over the Russia probe and for drafting a misleading statement about a Trump Tower meeting with a Russian lawyer during the 2016 campaign. Mueller has not alleged any legal wrongdoing by the president. Trump has repeatedly denied that his campaign coordinated with Russia’s covert effort to defeat Hillary Clinton.
If confirmed to the Supreme Court, Kavanaugh would not likely face the question of what warrants impeachment. That is a question for Congress. But some legal experts say the Starr Report’s road map could influence a future congressional debate if Trump faces impeachment.
“If the president’s telling a false story to the public or to his secretary is an impeachable offense, how is that different from the president tweeting a false story? It could be a signal to witnesses,” said University of Chicago law professor Daniel Hemel. “You can imagine (Senate Minority Leader Chuck) Schumer turning to the Republicans and saying, ‘We should rely on the Kavanaugh argument for impeachment.’ Of course, (Kavanaugh) won’t have a vote, but if there is an impeachment, Kavanaugh would be looming in the background.”
Andrew Leipold, a University of Illinois law professor who worked on the Starr Report, said that while Kavanaugh drafted the impeachment articles, “everyone knew this was a report that reflected the views of the office and ultimately of Ken Starr.”
Clinton’s defenders and most Democrats questioned whether the president’s lies and cover-up amounted to a “high crime” warranting impeachment.
Leipold said the final decision rested with Congress.
“Was the referral aggressive in setting forth the grounds for impeachment? Some people say yes,” Leipold said. “I won’t say everything was right, but I think we set forth truthful allegations.”