Ka­vanaugh’s past may shape fu­ture

In ’98, he said said cover-up, lies may spur im­peach­ment

South Florida Sun-Sentinel (Sunday) - - Front Page - By David G. Sav­age Wash­ing­ton Bureau

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 coverup 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.”

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