The partisan battle Brett Kavanaugh now regrets
WASHINGTON — By the beginning of 1998, Brett M. Kavanaugh seemed set: a Yale law degree, three judicial clerkships, including one with Justice Anthony M. Kennedy, and, less than a decade out of law school, a coveted partnership at Kirkland & Ellis, a prominent law firm with offices a block from the White House.
At just 32, Kavanaugh had wrapped up a three-year stint working for his mentor, Ken Starr, on the sprawling Whitewater investigation of President Bill Clinton. The inquiry was finally winding down, and Kavanaugh believed it was in some ways deeply flawed, telling an audience at Georgetown University Law Center, “It makes no sense at all to have an independent counsel looking at the conduct of the president.”
Then, just as he was starting at the law firm, he went back.
For nearly seven months, Kavanaugh — now President Donald Trump’s nominee to replace Kennedy on the Supreme Court — worked for Starr once again, despite his objections, helping assemble the case that the president had an affair with Monica Lewinsky and obstructed justice by trying to cover it up. It was Kavanaugh who pressed Starr to aggressively question Clinton on the details of his sexual relationship with Lewinsky and who drafted the section of Starr’s report to the House that laid out 11 possible grounds for Clinton’s impeachment.
Kavanaugh’s decision to return to Starr’s side plunged him into an immersion course in the brutal ways of Washington combat, forever connecting him to an investigation Democrats called a partisan witch hunt, foreshadowing the epithet that Republicans now use to describe the efforts of the special counsel, Robert S. Mueller III.
Kavanaugh still regards Starr as an “American hero.” But whether as a result of mature reflection or the expedient recognition that he should distance himself from the politically radioactive prosecution, Kavanaugh now argues more forcefully against criminal investigations
of sitting presidents.
“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 in a 2009 law review article, about 10 years after the Starr investigations ended.
“But in retrospect,” he said, “that seems a mistake.”
That position has an obvious appeal to the White House and allies of Trump. But to Democrats who objected to Starr’s investigation and are now the ones looking to a special counsel to find criminal activity in a president’s activities, there is more than a little irony in Kavanaugh’s shifting positions.
“It redefines flexibility,” said Rahm Emanuel, the mayor of Chicago, who was a senior adviser to Clinton at the time.
A DIFFERENT KIND OF INVESTIGATION
News of the Lewinsky affair broke in January 1998, after Clinton testified in a sexual harassment suit that had been nurtured for years by a network of conservative lawyers. Paula Jones, an Arkansas state worker, said Clinton had made lewd advances in a hotel room when he was governor. In his deposition for the case, Clinton was provided a tortured definition of sexual relations — and denied engaging in such actions with Lewinsky.
Starr obtained permission from Janet Reno, the attorney general, and a three-judge panel to expand his investigation to include Lewinsky, and suddenly Kavanaugh’s former colleagues were under siege. An investigation that had begun by examining a complex real estate deal in Arkansas had become a tawdry exposé of the president’s sex life, complete with a semen-stained dress and a sex toy in the Oval Office.
“The moment they go into a different chapter, it becomes the most unprofessional investigation ever done,” Emanuel said. “They were not doing their job. They were leaking constantly, and they were trying to battle a presidency.”
Some members of Starr’s team, such as Rod J. Rosenstein, now the deputy attorney general, and Alex M. Azar II, the current secretary of health and human services, were heading for the exits or keeping their distance. Neither returned to the Starr team after the Lewinsky scandal emerged.
But Kavanaugh was a Starr protégé — he started his legal career with a one-year fellowship in the office of the U.S. solicitor general when Starr held that office. And so when his old boss called on him in April 1998, Kavanaugh did not say no right away. His partners at Kirkland & Ellis thought he was crazy for even thinking about going back. In the end, loyalty prevailed.
“We begged and begged and begged,” said Robert Bittman, the deputy counsel who led the Lewinsky prosecution for Starr. “He really liked big legal issues. That was my pitch to him. Eventually, he succumbed and came back.”
At the Georgetown Law Center event earlier that year, a moderator had asked the panel Kavanaugh was on: “How many of you believe as a matter of law that a sitting president cannot be indicted during the term of office?” Kavanaugh raised his hand.
Still, he reasoned, impeachment was another matter. It was one thing to have concerns about an unrestrained prosecutor. But the Constitution made it clear Congress should have the power to address presidential misdeeds, so when he returned to the Starr investigation, Kavanaugh gave no indication that he had any doubts about laying the groundwork for Congress to remove the president.
That spring, Kavanaugh again became one of Starr’s top legal strategists in what became a fierce war with Clinton’s lawyers that involved strategic leaks to the press about evidence and, critics said, grand jury testimony.
Kavanaugh’s associates said they did not believe he was ever guilty of the kinds of leaks that Clinton’s lawyers repeatedly complained about. In a questionnaire he submitted to the Senate last month, Kavanaugh wrote, without elaborating, that “I have also spoken to reporters on background as appropriate or as directed.”
Kavanaugh attended occasional dinners at Starr’s house, including one where the Capitol Steps, a musical satire group, performed. But he was not part of the poker games a few of the lawyers sometimes held, one colleague recalled. Most described him as a quiet force at Starr’s daily 5 p.m. all-hands strategy sessions, speaking up only occasionally to help guide the legal debate.
“He’s always been a guy who is judicious in his comments,” said Sol Wisenberg, one of Kavanaugh’s colleagues at the time. “He’s not a shouter.”
In an office that included Democrats and Republicans, Kavanaugh was not openly ideological, according to several of the people who worked with him. But like the other lawyers, Kavanaugh was deeply invested in winning, and convinced of the president’s moral and criminal guilt.
“Were there people who disliked the president? Absolutely,” said Andy Leipold, a member of the Starr legal team who is now a law professor at the University of Illinois. “The more the attacks came — what we perceived to be unfair attacks — it was human nature. This guy just is not acting presidential.”
By the summer, the investigation that Kavanaugh had rejoined was seen by many in Washington as an out-of-control, puritanical crusade that had morphed into an unfair attempt to criminalize the president’s personal behavior — a perception opinion polls showed was largely shared by the American people.
One of Kavanaugh’s former law partners urged him to leave before his career suffered permanent damage. Kavanaugh listened — and decided to stay.
“Brett’s recognition was that I needed all the help I could get,” Starr recalled. “By that time, Brett and I were very close. I think he responded to a friend in need.”
‘THE PRESIDENT HAS DISGRACED HIS OFFICE’
Starr and his lawyers grew obsessed with the president’s lies even as Clinton’s allies condemned the investigators as part of a right-wing legal conspiracy that had maneuvered to take him down.
The atmosphere inside the independent counsel’s office grew even more intense as it became clear Clinton would testify in the Lewinsky case, and that Starr was determined to send an impeachment report to Congress.
As prosecutors prepared for their face-off with Clinton in August, Kavanaugh took a hard line in urging relentless and detailed questioning of the president, according to two people in Starr’s office who recalled a memo Kavanaugh sent urging the use of explicit questions during the interview.
“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 a shambles — callous and disgusting behavior that has somehow gotten lost in the shuffle,” Kavanaugh wrote in the memo, according to a 2010 book, “The Death of American Virtue: Clinton vs. Starr.”
In the memo, Kavanaugh added that Clinton had attacked the Starr team “with a sustained propaganda campaign that would make Nixon blush.”
Unless Clinton resigned or admitted to perjury and publicly apologized to Starr, Kavanaugh wrote, he should be asked detailed questions based on Lewinsky’s testimony about oral sex, masturbation and the like.
As Starr’s self-imposed September deadline to deliver a report to Congress loomed, Kavanaugh focused on developing the grounds for Clinton’s impeachment, including sweeping charges of lying and obstruction of justice.
“He was a working machine,” Leipold recalled. “What I remember is him sitting at the computer with weeks, days, hours to go before the referral needs to go to the printer, working away, focused like a laser.”
But when the time came to provide Congress with a report, Kavanaugh grew distressed. In addition to outlining the possible case for impeachment, Starr also planned to give lawmakers an extended “narrative,” full of sordid details, about the affair between Clinton and Lewinsky.
“Brett was an advocate against explicit detail,” said Paul Rosenzweig, who took the opposite position during the heated strategy sessions on the issue. Rosenzweig and others, including Starr, thought they needed to include the details to prove their case that Clinton had lied.
Kavanaugh thought the sexual narrative would undermine the credibility of the office, and he predicted it would be immediately leaked to the press by members of Congress. He urged Starr to at least write a blunt letter urging them not to make that part of the report public.
He lost both fights. The final report included all the sexual details, and quickly went online. In a 1999 interview with CNN, Kavanaugh said that decision had hurt Starr’s team.
“It really was a mistake for Congress to take this sensitive information, to put it on the internet before they even read it,” Starr said. “They had not even read the report, and obviously, given the nature of the case, there were going to be some sensitive details. I think that was a mistake, that was unfortunate, it redounded to our detriment.”