Brett Kavanaugh's Role In the Starr Investigation And How It Shaped Him

Aug 17, 2018
Originally published on August 20, 2018 12:29 pm
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AUDIE CORNISH, HOST:

20 years ago today, President Bill Clinton testified before the Office of Independent Counsel and a grand jury about his relationship with former White House intern Monica Lewinsky.

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BILL CLINTON: I answered their questions truthfully, including questions about my private life - questions no American citizen would ever want to answer.

CORNISH: One of the people involved in drafting those questions is now President Trump's nominee for the Supreme Court, Brett Kavanaugh. NPR White House correspondent Tamara Keith reports on how his role in the investigation and how it shaped him.

TAMARA KEITH, BYLINE: Brett Kavanaugh wasn't even 30 yet. He was finishing up a Supreme Court clerkship, was recruited to a big deal law firm when the guy who recruited him, Ken Starr, was drafted to take over the independent counsel investigation into Whitewater.

KEN STARR: So I immediately sat down with Brett over lunch and encouraged him to postpone the private practice of law by, say, well, six months or so, and come join my team in the Washington, D.C., office.

KEITH: Starr is chuckling there because what was supposed to be six months turned into nearly four years. Kavanaugh was part of what Starr and others in the office called the brain trust, the lawyers who puzzled over the many legal and constitutional questions that came up. The investigation had more than its share of critics for veering from looking at a bad land deal into the president's sex life. But Kavanaugh and others felt it was necessary to get to the bottom of the intimate details - again, Ken Starr.

STARR: The facts were unpleasant. But we - it was our duty to - as best we could, to get the facts that abhor on the serious issues of perjury, intimidation of witnesses and obstruction of justice.

KEITH: On the eve of the interview with Clinton, Kavanaugh sent a memo to a Starr and the other lawyers in the office arguing Clinton had, quote, "disgraced his office, the legal system and the American people" with his actions. According to the book "The Death Of American Virtue: Clinton Vs. Starr," Kavanaugh also proposed 10 sample questions about Clinton's relationship with Monica Lewinsky, with descriptions of sexual acts both detailed and explicit.

SOL WISENBERG: There's no point in pussyfooting about it.

KEITH: Sol Wisenberg was one of three career prosecutors who conducted the questioning. Clinton had testified under oath in a civil deposition about his relationship with Monica Lewinsky. And the independent counsel team had detailed information from Lewinsky and others that contradicted his testimony.

WISENBERG: And he was asked about sexual relations with Monica Lewinsky, asked whether he was alone with her, denied that he was. Then we have all of this information to the contrary from Monica Lewinsky. And so it becomes very important to try to corroborate.

KEITH: In the end, the questions asked were not nearly as graphic as what Kavanaugh wrote up in his memo. In February 1998, even as the investigation was ongoing, Kavanaugh was part of a panel discussion at Georgetown University about the future of the independent counsel law. He voiced serious doubts about whether an independent counsel was the best way to investigate a president.

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BRETT KAVANAUGH: I tend to think it has to be the Congress because of the kind of attacks that we've seen recently and because of the types of issues that were just pointed out. It is war. And if it's going to be war, it's got to be Congress, not an isolated prosecutor appointed by a panel of three judges we've never heard of.

KEITH: That year, Kavanaugh wrote key portions of the independent counsel's report to Congress. Starr says Kavanaugh wrote the section of the report making the legal case for impeachment.

STARR: And I think it is important for the record to show that he did not author the narrative section or the facts section of the report.

KEITH: Starr makes that point because the narrative section became a flashpoint in the political fight over the investigation because it was so sexually explicit. Even though Kavanaugh pushed to ask those questions, when it came time to send the report to Congress, he urged caution in internal deliberations and a cover letter he helped draft.

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KAVANAUGH: The chair lays before the House of Communication.

KEITH: It was read aloud as the House officially received dozens of boxes of evidence from Starr's team.

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KAVANAUGH: Many of the supporting materials contain information of a personal nature that I respectfully urge the House to treat as confidential.

KEITH: It turns out, there was good reason for caution. The House, led by Speaker Newt Gingrich, didn't heed the warning and released the documents in full on the Internet.

NEWT GINGRICH: We regret it - not the report. I certainly did not regret the report. We did our duty as we saw it, but we did very much regret. And as I say, we were genuinely surprised by the fact that Congress would - House of Representatives would see fit simply to release the material without having read, reviewed and redacted.

KEITH: A Gallup poll from November 1998 found President Clinton was far more popular than Ken Starr. And public opinion of the investigation was dismal. But Kavanaugh remained loyal and proud. In late 1999, he spoke at a dinner honoring Starr that was televised by C-SPAN.

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KAVANAUGH: And maybe I'm an optimist. But one day, I, for myself, hope to be able to call him Mr. Justice Starr.

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KEITH: Starr was far too controversial a figure for that to ever happen, but Starr is now hoping the young lawyer he worked with so closely in the 1990s will become the next Supreme Court justice. And one reason Kavanaugh may have gotten the nod from Trump - a president who is himself wrapped in a special counsel investigation - is a law review article Kavanaugh wrote a decade ago. In it, he argued that a president shouldn't be subject to civil litigation or criminal investigation while in office because the demands of the office are too great. The remedy, he argued, if a president does something dastardly, would be impeachment - quote, "no single prosecutor, judge or jury should be able to accomplish what the Constitution assigns to Congress." Tamara Keith, NPR News. Transcript provided by NPR, Copyright NPR.