Jurisprudence

How Ken Starr’s Associate Brett Kavanaugh Would Question Supreme Court Nominee Brett Kavanaugh

Kavanaugh photographed in 1996 and 2018.
Starr aide Brett Kavanaugh in 1996 and Supreme Court nominee Brett Kavanaugh in 2018.
Photo illustration by Slate. Photos by David Hume Kennerly/Getty Images and Chip Somodevilla/Getty Images.

The Republican members of the Senate Judiciary Committee have engaged Rachel Mitchell, an experienced sex crimes prosecutor from Arizona, to question Brett Kavanaugh and Christine Blasey Ford on Thursday about Ford’s allegations of sexual assault. Presumably the male GOP senators on the committee have chosen a woman to question Ford because they are wary of interrogating an alleged victim of sexual abuse.

But less attention has been paid to what kind of treatment Kavanaugh himself will receive. Just what kinds of questions should Kavanaugh be required to answer about the serious, and now multiple, accusations that have been lodged against him in the last few weeks? During a Sept. 24 appearance on Fox News, Kavanaugh declared that he has “never sexually assaulted anyone, not in high school, not ever” and has “always treated women with dignity and respect.” He has expressed more than a little annoyance, however, at the prospect that these broad assertions might be tested through a detailed and factual inquiry into his reportedly heavy drinking or his relationships with and treatment of women during his high school, college, and law school years.

During the Fox News interview, Kavanaugh declared, “I did not have sexual intercourse or anything close to sexual intercourse in high school or for many years thereafter,” and then stated, “I’ll leave it at that.” According to the Washington Post, Kavanaugh expressed the same view while preparing for Thursday’s hearing and “grew frustrated when it came to questions that dug into his private life, particularly his drinking habits and his sexual proclivities.”

The message seems clear: Kavanaugh considers it improper and unseemly to undertake a searching and potentially embarrassing inquiry into his sexual history and potential abuse of alcohol. Kavanaugh has also suggested that such an inquiry is unnecessary, particularly given that, during high school, he was a model citizen, “focused on academics and athletics, going to church every Sunday at Little Flower, [and] working on my service projects.”

Yet when he was a prosecutor on Ken Starr’s independent counsel staff, Kavanaugh had no such reticence about asking intrusive, deeply embarrassing questions about sexual matters. In 1998, when Starr’s team was preparing to question Bill Clinton under oath regarding his relationship with Monica Lewinsky, Kavanaugh wrote an internal memo titled “Slack for the President?” in which he said that he was “strongly opposed to giving the President any ‘break’ in the questioning regarding the details of the Lewinsky relationship” unless the president resigned or “confess[ed].”

In his memo, Kavanaugh proceeded to advocate for what he described as “ ‘full and complete’ testimony” from Clinton and proposed a number of specific questions in order to “gather[] the full facts regarding the actions of [the] President.” Among the queries Kavanaugh suggested: Did Clinton have phone sex with Ms. Lewinsky 15 times? Did Clinton ejaculate in a White House sink? Did the president masturbate into a trash can in his secretary’s office?

As Helaine Olen recently observed in the Washington Post, while the Starr team’s actual questioning of Clinton was highly graphic, it was arguably less intrusive than what Kavanaugh had advocated for.

Based on the reasoning of prosecutor Kavanaugh, it should be wholly proper for Supreme Court nominee Kavanaugh to be “forced to account for” his actions before the nation.

I’d imagine that prosecutor Kavanaugh would ask Supreme Court nominee Kavanaugh questions including the following:

Whether, as alleged by Christine Blasey Ford, during a drinking binge, Kavanaugh forced her into a room, put his hand over her mouth, tried to remove her clothes as she struggled to get away, and treated her so roughly she reasonably feared for her life;

Whether, as alleged by Deborah Ramirez, Kavanaugh, again while highly inebriated, pulled down his pants before Ramirez and presented his penis to her while others laughed and one onlooker taunted her to “kiss it”; and

Whether, as alleged by Julie Swetnick, Kavanaugh, while drunk, repeatedly “ground” himself against women and attempted to fondle and grab them without their consent, as well as whether he was present while a drugged and debilitated Swetnick was gang raped.

Kavanaugh has reportedly refused to answer similar questions during his preparation sessions, arguing that they were “too personal.” Yet prosecutor Kavanaugh had no patience with such considerations, arguing to fellow members of Starr’s team that “it is our job to make [the witness’s] pattern of revolting behavior clear—piece by painful piece.” Furthermore, while Kavanaugh has since questioned whether presidents should be subject to criminal investigations while in office, he has not disavowed his memo nor suggested that the questioning of President Clinton was conducted improperly.

Now it is Kavanaugh’s turn to face such an intrusive inquiry. Indeed, as Kavanaugh stated in his memorandum regarding the testimony of President Clinton, if the questioners do not undertake such a searching examination, they will be “failing to fulfill [their] duty to the American people.”