On Sunday, Donald Trump’s lawyer Jay Sekulow admitted that his client, President Donald Trump, ghostwrote, and instructed his son Donald Trump Jr. to issue, a false statement to the press about an active criminal investigation. Then, after the falsity of Trump Jr.’s statement was uncovered, the president seemingly lied to Sekulow, telling his lawyer that he had played no role in drafting it, and thereby induced Sekulow to repeat that falsehood to the nation. While Sekulow argues that there was nothing illegal about the president’s conduct here, Supreme Court nominee Brett Kavanaugh has argued the opposite. According to Kavanaugh and his fellow authors of the Starr Report, actions like Trump’s could be criminal, and furthermore may constitute an impeachable offense.
In July of last year, Trump Jr. told the New York Times that the 2016 Trump Tower meeting between the leaders of the Trump campaign and a Kremlin-connected Russian lawyer was primarily “about the adoption of Russian children,” a matter that was “not a campaign issue at the time.” That statement was almost immediately proved to be wholly false by Trump Jr.’s own emails, which showed that he’d been promised derogatory information about Hillary Clinton, purportedly gathered by the Kremlin “as part of Russia and its government’s support for Mr. Trump[‘s]” campaign. The president belatedly admitted as much on Sunday morning, tweeting that “it was a meeting to get information on an opponent, totally legal and done all the time in politics.”
Soon after the falsity of Trump Jr.’s statement came to light, the president sent Sekulow to appear on television to declare that Trump had played absolutely no role in the drafting of his son’s false statement about the Trump Tower meeting. On Sunday, Sekulow appeared on television again, this time to admit that his prior emphatic denials were false. As Sekulow it: “I had bad information at the time.”
The plain implication was that Trump lied to his own attorney about his role in drafting the false statement, and then sent Sekulow out to serve as his dupe by unknowingly repeating Trump’s lie to the nation.
Sekulow, though, contended (both on Sunday and to Special Counsel Robert Mueller) that Trump’s serial mendacity cannot give rise to liability. This is because, according to Sekulow, causing a witness to lie to the public or the press (or doing so yourself) is not illegal.
In 1998, when he was a member of Independent Counsel Kenneth Starr’s prosecution team, Brett Kavanaugh came to the opposite conclusion. Kavanaugh drafted the section of the Starr Report that set out the legal theories supporting the independent counsel’s claim that Bill Clinton had committed offenses that could merit impeachment. Central to that argument was a claim that Clinton had obstructed justice by attempting to encourage a witness to lie, as well as by lying to the nation himself.
According to the Starr Report, soon after Clinton falsely testified about his relationship with Monica Lewinsky in a civil lawsuit brought by Paula Jones, he made statements about his relationship with Lewsinky to his assistant Betty Currie that Currie knew to be false, including denying that he had been alone with Lewinsky in the White House. The report then said that Clinton anticipated that Currie would become a witness, and his false statements to her amounted to an obstruction of justice by “attempting to influence the testimony that Ms. Currie might have been required to give in the Jones case or in a grand jury investigation.” The Starr Report also speculatively asserted that Clinton lied about his relationship with Lewinsky to aides who had no knowledge of the matter in the hope they would repeat his lies to the grand jury.
The Starr Report’s theory vis-à-vis Currie was a stretch, because at the time of Clinton’s conversations with Currie it was far from clear that she was going to be called as a witness in the civil case, and Clinton had no reason to believe there was a criminal investigation relating to his relationship with Lewinsky, let alone a grand jury proceeding, at the time of his conversations with Currie.* The claim that Clinton obstructed justice by lying to individuals who had no first-hand knowledge of his relationship with Lewinsky was even more speculative.
The Starr Report’s obstruction theory, however, is far more compelling when applied to President Trump’s role in the Trump Jr. statement. As Sekulow now admits, the president not only sought to influence Trump Jr.’s account of the Trump Tower meeting, he went so far as to draft a completely false statement and cause Trump Jr. to release it to the press. Additionally, Trump induced his son to lie in the midst of a grand jury investigation in which the president knew his son was likely to be called to testify. Therefore, the statement appears to be an attempt by the president to lock Trump Jr. into a false statement that would ultimately be repeated to a grand jury. Furthermore, in the years since the Starr Report was authored, Congress has enhanced the reach of the federal obstruction of justice offense to expressly impose criminal liability on a person who “obstructs, influences, or impedes any official proceeding, or attempts to do so.”
Both Sekulow and fellow Trump lawyer Rudolph Giuliani have lately focused on a theory that their client is virtually immune from criminal liability, and therefore can be sanctioned only by impeachment. Yet, even assuming this argument is correct, the analysis put forward by Kavanaugh and the other authors of the Starr Report is, once again, unhelpful to Trump’s cause.
This is because, as the Starr Report recognized, presidential misconduct need not actually be a violation of criminal law to constitute a high crime or misdemeanor meriting impeachment under Article Two of the Constitution.
The Starr Report argued that Clinton could merit impeachment because he lied to the “American people and the Congress” during a televised address given after his grand jury testimony, asserting that his civil deposition testimony had been “legally accurate.” Once again, this reasoning applies to Trump’s conduct with greater force. At the time Clinton allegedly “lied” to the nation about his prior testimony, the relevant facts regarding his relationship with Lewinsky were publicly known.Furthermore, The Starr Report’s claim that Clinton lied about his relationship with Lewinsky to aides in the hope they might later repeat his lies to the grand jury was tenuous at best.
By contrast, Sekulow has now admitted that Trump schemed to cause Sekulow to repeatedly and publicly lie about Trump’s role in authoring his son’s false statement about the Trump Tower meeting at a time that the truth was not even known to Sekulow, let alone the public. Indeed, there is substantial reason to believe that Trump’s purpose in sending Sekulow out to disseminate the false account was not only to mislead to the nation, but also to encourage other witnesses to lie and otherwise impede the ongoing criminal investigation.
In sum, if Mueller’s investigators want a template for writing a report charging president Trump with acts of obstruction meriting impeachment, they could do worse than using the sections of the Starr Report drafted by Kavanaugh.
There is one caveat to the foregoing analysis. Over the last few decades, Kavanaugh’s views have changed. As recounted in a New York Times article, Kavanaugh, who became a federal judge in 2006, has expressed regrets about the investigation into President Clinton. Furthermore, Kavanaugh has argued that Congress should pass a law expressly prohibiting a president from being compelled to testify about, and even from being investigated for, criminal activities, and his writings and statements leave open the possibility that he might favor imposing such a bar through a judicial decision should be join the Supreme Court.
Therefore, if Judge Kavanaugh has his way, Robert Mueller would not be able to investigate President Trump, let alone present a case for his potential impeachment for review by Congress. There is also reason to believe that a number of other members of the current Supreme Court might be attracted to such a position. Accordingly, if Judge Kavanaugh joins the Supreme Court, he might well prevent his own prosecutorial theories from being applied to the president who nominated him.
Correction, Aug. 6, 2018: This piece originally misstated that a civil judicial proceeding cannot be the subject of an obstruction charge. Courts have recognized that witness tampering and certain other obstructive acts can come into play in civil proceedings.