Jurisprudence

How Kavanaugh Likely Violated DOJ Policies While Working for Ken Starr

The judge needs to account for his conduct with the independent counsel.

Brett Kavanaugh testifying
Supreme Court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on Capitol Hill on Sept. 6 in Washington.
Drew Angerer/Getty Images

According to President Trump, Brett Kavanaugh is an “extraordinary man” with an “unblemished record” and an “impeccable reputation.” Sen. Orrin Hatch describes the Supreme Court nominee as a “person of immense integrity” who has always been “honest” and “truthful” and “very, very decent.” These two and other Kavanaugh defenders argue that, because the judge’s “character and integrity” are purportedly “unassailable,” Christine Blasey Ford’s allegations against him should be disbelieved.

As the nation has repeatedly learned, such rosy character attestations are of limited value in judging the merits of an allegation of sexual misconduct against a prominent individual. Furthermore, in Kavanaugh’s case, reliance on claims about his “character and integrity” are all the more dubious given that a number of serious questions regarding his professional conduct remain unanswered in the wake of the Senate Judiciary Committee’s rushed confirmation hearings.

There are still substantial questions, for instance, regarding Kavanaugh’s tenure as a White House staffer in the George W. Bush administration. Most notable among them is whether he knowingly misused materials stolen from Democratic senators’ offices to further efforts to confirm several controversial Bush judicial nominees and whether he lied about the matter under oath during multiple hearings. Other questions regarding Kavanaugh’s White House tenure could not even be meaningfully explored during the confirmation hearings because so many relevant documents were withheld (or not even requested), including materials relating to Kavanaugh’s possible role in reviewing the CIA’s use of “enhanced interrogation” techniques against certain detainees.

But the least-examined portion of Kavanaugh’s career concerns his role as an associate counsel under Ken Starr during the multiple investigations of President Bill Clinton, Hillary Clinton, and others. Among the most important unanswered questions about Kavanaugh’s years as a prosecutor is whether he provided selective leaks to favored journalists in contravention of Justice Department policies respecting the confidentiality of criminal investigations.

Prosecutors and investigators are generally directed to avoid even disclosing the existence of ongoing investigations, let alone serving as confidential sources regarding the substance of sensitive, nonpublic facts gleaned in criminal inquiries. This policy of confidentiality is intended to protect the rights of both victims and defendants. As the Department of Justice U.S. Attorneys’ Manual provisions in force at the time of Starr’s investigation explained, the department has long had a general policy of “not respond[ing] to questions about the existence of an ongoing investigation or comment[ing] on its nature or progress.” Even in unusual “circumstances,” when a comment on an ongoing investigation “need[s]” to be made—such as to address existing publicity regarding a matter—media contacts had to be approved in advance by the U.S. attorney or DOJ official in charge. Furthermore, a knowing violation by a law enforcement officer of the Federal Rules of Criminal Procedures’ restrictions on the disclosure of information obtained in grand jury proceedings can result in a finding of contempt.

One need only look to the last presidential race to confirm the wisdom of these policies in favor of maintaining the confidentiality of ongoing investigations, given that James Comey’s repeated comments regarding a criminal investigation that did not even end with charges may have swayed the outcome of the election.

It appears clear, however, that Starr’s Office of Independent Counsel had little regard for the DOJ’s policies regarding press contacts. The Starr team’s off-the-record media communications during its investigation of President Clinton’s sexual activities were so extensive, and so questionable, that they ultimately led a federal judge to commission an investigation into whether members of Starr’s staff violated the prohibitions on disclosing grand jury information. (No charges of illegal conduct were ultimately levied.) Furthermore, Starr’s press liaison was the subject of an (ultimately unsuccessful) criminal prosecution arising from his role in leaking information related to Starr’s contemplation of a potential indictment of President Clinton.

The Starr office’s systemic leaking actually began years earlier and was in full swing when Starr embarked on a three-year investigation into the death of deputy White House counsel Vincent Foster. By the time Starr came on the scene, there was no actual mystery surrounding Foster’s death. Starr’s predecessor, Robert Fiske, had already fully investigated the matter and confirmed that Foster had taken his own life. Yet Foster’s demise was the obsessive focus of a then-emerging group of right-wing conspiracists, including, most notoriously, GOP House member Dan Burton, who filmed himself shooting melons in an amateur forensic effort to challenge the merits of the FBI’s investigation. The most audacious conspiracists were hellbent on proving that the president and his wife had killed (or covered up the purported murder of) Foster, one of Hillary Clinton’s closest friends, in order to keep him from telling the “truth.” As former Clinton aide Paul Begala recently stated, Starr “tormented” Foster’s family by pandering to these conspiracy theorists through his pursuit of an extremely lengthy, and utterly unnecessary, investigation.

Starr relied on Brett Kavanaugh to document the results of his sprawling Foster investigation. One might question why Kavanaugh, who was coming off a clerkship for Supreme Court Justice Anthony Kennedy (whom he has been nominated to succeed) and was even then marked for a brilliant career in the law, chose to spend years of his life conducting such an utterly pointless “investigation” into a suicide. The likely answer is that Starr, Kavanaugh’s then-mentor, was determined to pursue any and all potential avenues for going after the president and his spouse and that Kavanaugh was not one to second-guess the boss.

Starr had served as a federal appeals court judge as well as the solicitor general, but he was a loyal Republican as well. Unlike Robert Mueller, he approached his investigation as a public relations battle as well as a law enforcement endeavor. To that end, his office was intensely focused on cultivating its image in the press, particularly among rabid opponents of the president. To that end, his office leaked like a sieve.

Starr has long admitted that he and his team regularly communicated with the press on an off-the-record basis, in apparent derogation of Justice Department policies. Recent revelations, including from Kavanaugh, have confirmed that these leaks were not merely responses to curious reporters. Rather, Starr himself directed his line prosecutors to assist those whom they perceived to be friendly journalists.

In late 1997, Dan Moldea was working on a book about Foster’s death for Regnery, an imprint known to publish works by extreme right-wing authors. Moldea, though, is a liberal investigative journalist, and his book was an inquiry into how anti-Clinton propagandists had fabricated the story that Foster had been murdered.

When Moldea got word that Starr was about to publish a report on Foster’s death, he contacted the independent counsel’s office. As Moldea recounts in a piece for National Memo, two of Starr’s senior deputies, Hickman Ewing and Jackie Bennett, rolled out the welcome mat for him, presumably because they believed he was a right-wing journalist. In a (perhaps inadvertently) on-the-record call, Ewing explained that Starr’s office had a practice of providing “non-public information on an off-the-record basis to certain reporters—if the OIC knew where they were ‘coming from’ and Ken Starr personally approved of them.” Ewing told Moldea that the office, and indeed Starr himself, had spoken with writers of two separate conspiracy-laden books on Foster’s death.

Moldea asked for the opportunity to speak with Starr. Bennett responded, however, that if Moldea wanted to obtain “substantive information” about the Foster investigation, he would be better off speaking to “people who are most hands-on on this” and “really have better knowledge than Ken does.” Ewing later said he would ask Starr for permission for Moldea to speak with Brett Kavanaugh, whom he identified as a “young” and ”brilliant” guy who had primary responsibility for writing Starr’s report on Foster’s death (just as he would later play a principal role in writing the section of The Starr Report that advocated vigorously in favor of impeaching the president).

Moldea states that he took up Ewing’s offer and met with Kavanaugh. Although it seems likely that, just as Ewing promised, Kavanaugh shared nonpublic, “substantive information” regarding Starr’s then-ongoing investigation into Foster’s death, the meeting was off the record. Moldea says he therefore remains bound by his agreement with Kavanaugh to maintain the confidentiality of the conversation.

Moldea was hardly the only member of the press that met with Kavanaugh to discuss the Starr team’s ongoing criminal investigations. Journalists including Jonathan Alter and Stephen Brill—the latter of whom published a lengthy article regarding the Starr team’s leaking—have stated that Kavanaugh was a central operative in Starr’s off-the-record press operation.

But we need not simply take these journalists’ words for it. In a questionnaire that Kavanaugh submitted to the Senate Judiciary Committee in connection with his nomination to the Supreme Court, the judge—after specifically listing various on-the-record interviews he has granted during his career—stated, “I have also spoken to reporters on background as appropriate or as directed.” In his Senate submission, Kavanaugh chose not to identify the reporters at issue, even though, as the source, he faces no legal or ethical obligation to keep those communications secret. Kavanaugh has apparently also chosen not to release Moldea and the other reporters with whom he had off-the-record communications from their confidentiality obligations despite a specific request to do so by Sen. Sheldon Whitehouse; those reporters thus remain bound to keep silent on the matter as well.

Kavanaugh’s defenders have pointed to the fact that he is not among the Starr personnel mentioned in a recently unsealed report into whether Starr’s office illegally leaked grand jury material. But, as Moldea notes, that report was focused on the later investigation into President Clinton’s sexual activities, not the independent counsel’s inquiry into Vince Foster’s suicide. Furthermore, it was apparently prepared during a period in which Kavanaugh had taken a leave from the Starr team and was working in the private sector. In any event, the Justice Department’s confidentiality policies also extend well beyond grand jury material, and there is ample reason to believe that the Starr team regularly violated those policies.

This matter goes to the heart of whether Kavanaugh has a practice of complying with important policies intended to protect the fairness and integrity of the justice system. Kavanaugh should be required to supplement his Senate submission by identifying each instance in which he spoke to reporters “on background as appropriate or as directed,” and to expressly relieve Moldea and any other journalists whom he spoke with of their confidentiality obligations.

That would be small step toward determining whether Kavanaugh truly merits the reputation for “character and integrity” that Trump and others have ascribed to him.