Much has been made of Supreme Court nominee Brett Kavanaugh’s argument, years ago, that Congress ought to pass a law protecting presidents from criminal investigations and prosecutions, as well as civil suits, during their time in office.
But, years before he made that argument, Kavanaugh played a key role in one of the most consequential investigations of a president in the 20th century: The judge has been identified as “a lead author” and “one of the primary authors” of independent counsel Ken Starr’s report to Congress on impeachable offenses committed by then-President Bill Clinton.
Whatever Kavanaugh’s thoughts on presidential probes today — they will surely be examined in his confirmation hearings — the Starr report, of which he was a co-author, argued that there was a large number of offenses for which a president could be impeached.
Here they are, as summarized from the report itself:
“Lying under oath”
Of the 11 impeachable offenses the Starr report said Clinton had committed, half consisted of assertions that Clinton lied under oath, including as a defendant in the Jones v. Clinton case, during a civil deposition, and to a grand jury in the course Starr’s probe. All of these assertions concerned Clinton’s relationship with Monica Lewinsky.
“Endeavor[ing] to obstruct justice”
The second half of the report’s grounds for impeachment included, essentially, a list of steps Clinton and others were alleged to have taken to hide evidence of the affair — steps that, the report argued, were attempts to obstruct justice. At one point, for example, Betty Currie, the President’s personal secretary, took a box of gifts Clinton had given Lewinsky from Lewinsky, and placed them under her own bed.
“The central factual question is whether the President orchestrated or approved the concealment of the gifts,” the report read. “The reasonable inference from the evidence is that he did.”
Later, the report asserted that Clinton engaged in obstruction by failing to correct his attorney Robert Bennet when, during a deposition, Bennet said “there is absolutely no sex of any kind in any manner, shape or form.” That line later led to Clinton’s famous remark that “it depends on what the meaning of the word ‘is’ is” — that is, whether Bennett was speaking in the present tense.
The report said: “[W]hen a witness is knowingly responsible for a misstatement of fact to a federal judge that misleads the Court and attempts to prevent questioning on a relevant subject, that conduct rises to the level of an obstruction of justice.”
Perhaps more relevant to the present day, the report argued that Clinton’s misleading statements to his own aides who would later testify before a grand jury constituted obstruction.
“The President’s grand jury testimony followed seven months of investigation in which he had refused six invitations to testify before the grand jury,” the report read. “During this period, there was no indication that the President would admit any sexual relationship with Ms. Lewinsky. To the contrary, the President vehemently denied the allegations.”
“Rather than lie to the grand jury himself, the President lied about his relationship with Ms. Lewinsky to senior aides, and those aides then conveyed the President’s false story to the grand jury,” it added.
“[T]here is substantial and credible information that the President improperly tampered with witnesses during the grand jury investigation,” the section concluded, referring to Clinton’s misleading statements to aides.
Failing to “faithfully execute the laws”
The last of the 11 impeachable offenses in the Starr report dealt with the President’s public statements and actions. Specifically, the report said, Clinton “made false statements to the American people” about his relationship with Lewinsky, and regarding whether he’d lied under oath.
The report also alleged Clinton had abused his executive privilege in order to slow and the probe.
“The President’s conduct delayed the grand jury investigation (and thereby delayed any potential congressional proceedings),” it read. “He asserted, appealed, withdrew, and reasserted Executive Privilege (and asserted other governmental privileges never before applied in federal criminal proceedings against the government). The President asserted these privileges concerning the investigation of factual questions about which the President already knew the answers. The President refused six invitations to testify voluntarily before the grand jury. At the same time, the President’s aides and surrogates argued publicly that the entire matter was frivolous and that any investigation of it should cease.”
The report added later: “By publicly and emphatically stating in January 1998 that ‘I did not have sexual relations with that woman’ and these ‘allegations are false,’ the President also effectively delayed a possible congressional inquiry, and then he further delayed it by asserting Executive Privilege and refusing to testify for six months during the Independent Counsel investigation.”
“This represents substantial and credible information that may constitute grounds for an impeachment,” the report asserted.
A change of heart
Years later, Kavanaugh would argue in the Minnesota Law Review that his earlier belief “that the President should be required to shoulder the same obligations that we all carry […] seems a mistake” in retrospect.
“Looking back to the late 1990s, for example, the nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal investigation offshoots,” he wrote.
But the fact remains that the Starr report covers a broad array of grounds for impeachment, many of which could apply tenfold to the President who nominated Kavanaugh to the Supreme Court.