Kavanaugh, Barr said Congress should probe presidents
WASHINGTON – Since taking control of the House, Democrats have launched a series of wide-ranging investigations of President Trump, his campaign, his administration and even his family business operations. Republicans in Congress have criticized this as just an effort to disrupt the Trump presidency and covering the same ground as special counsel Robert Mueller III’s Russia probe. But Democrats actually are doing something two of Trump’s most prominent nominees have advocated: conducting their own investigation.
During the Kenneth Starr-led investigation into Bill Clinton’s affair with White House intern Monica Lewinsky, Brett Kavanaugh and William Barr argued that waiting on the counsel’s report would be an abdication of Congress’ constitutional duty. Both men unequivocally supported rigorous congressional oversight apart from – or perhaps even instead of – a counsel investigation. But with Trump in office, Republicans have spent two years defying their own key nominees’ words.
“When Congress learns of a serious allegation against a president, it must quickly determine whether the president is to remain in office,” wrote Kavanaugh in a Washington Post article, “First Let Congress Do its Job,” dated Feb. 26, 1999.
Kavanaugh, then a top lawyer for the Starr investigation, was averse to both a badly behaved president and the Independent Counsel Statute. For Congress to sit idly and defer to the counsel’s investigation, he said, is “not what the Constitution contemplated.”
“There simply was no need for this mess to have occupied the country for 13 months,” suggested Kavanaugh, because Congress could have much faster “gotten to the truth.” In a March 1998 article published by American Spectator, Kavanaugh, now a Supreme Court justice, wrote that “[b]ecause Congress is the entity constitutionally assigned to determine whether the president should remain in office, it follows that a congressional inquiry should take precedence over a criminal investigation of the president.”
Kavanaugh added: “It is more important for Congress to determine whether the president has committed impeachable offenses or otherwise acted in a manner inconsistent with the presidency than for any individual to be criminally prosecuted and sentenced to a few years in prison.”
Like Kavanaugh, Barr – the recently confirmed attorney general – once expressed dissatisfaction with Congress’ shrinking role in presidential investigations.
“I would like to see the watchdog institutions we have in society step up and perform the primary role they are supposed to, not let the independent counsel handle everything,” he said during a 1999 congressional hearing. “And then continue vigorous oversight both by Congress and the press.”
Kavanaugh and Barr’s late-1990s statements were made in the context of the Independent Counsel statute, not current special counsel regulations. The statute was allowed to expire in 1999 and was not replaced. Unlike Starr, Mueller gets his power, jurisdiction and protection from Justice Department rules, not a statute.
At times, a counsel’s investigation and a congressional oversight committee can overlap, but each has its own boundaries, said attorney Jonathan Meyer, a partner at Sheppard Mullin who has experience with both types of investigations. Neither, he said, has unlimited power or jurisdiction.
“The Committee is limited by constitutional issues,” he said, like separation of powers and balance of powers between the branches of government. Meyer also noted that there are limits to the information an oversight committee can obtain.
Unlike a special or independent counsel, which investigates allegations of criminal activity, Congress’ role is much broader, House Oversight and Reform Committee Chairman Rep. Elijah Cummings, D-Md., said in a statement to the Post. It also investigates waste, fraud, abuse, inefficiency, and duplication with an eye toward reforming existing laws or writing new ones.