Kavanaugh’s revised thinking, as reflected in a 2009 law journal article, is that civil and criminal investigations “take the President’s focus away from his or her responsibilities to the people.” His argument has been cited as a factor that appealed to President Trump as he faced a Supreme Court vacancy while dealing with an ongoing special counsel’s investigation into Russian election interference.
In early 1995, however, Kavanaugh offered his boss, independent counsel Kenneth W. Starr, the legal rationale for expanding his investigation of the Arkansas financial dealings of President Bill Clinton and his wife, Hillary, to include the Foster death, according to a memo he wrote on March 24, 1995.
Kavanaugh, then 30, argued that unsupported allegations that Foster may have been murdered gave Starr the right to probe the matter more deeply. Foster’s death had already been the focus of two investigations, both concluding that Foster committed suicide.
“We are currently investigating Vincent Foster’s death to determine, among other things, whether he was murdered in violation of federal criminal law,” Kavanaugh wrote to Starr and six other officials in a memo offering legal justification for the probe. “[I]t necessarily follows that we must have the authority to fully investigate Foster’s death.”
The four-page memo, obtained by The Washington Post from the Library of Congress, sheds light on how Kavanaugh’s thinking evolved on the legal rights of sitting presidents.
His handling of Starr’s Foster probe helped elevate Kavanaugh’s career, but the lengthy inquiry enabled conspiracy theories to flourish and add to the tumult of the Clinton presidency. Once the Foster matter was closed, Starr’s office continued to investigate the Clintons and eventually veered into the president’s relationship with White House intern Monica Lewinsky.
Kavanaugh pursued the Foster inquiry at Starr’s request, even though he and others in the office soon came to believe that Foster killed himself, according to two people who worked with him at the time. Ultimately, Kavanaugh’s report in October 1997 affirmed earlier findings of suicide. The Foster component of Starr’s investigation cost about $2 million and lasted three years.
Foster’s family expressed outrage that the Starr investigation enabled conspiracy theorists to “allow the American people to entertain any thought that the president of the United States somehow had complicity in Vince’s death,” Sheila Foster Anthony, Foster’s sister, said the day the findings were released. She did not respond to a request for comment.
Kavanaugh told CNN in a 1999 appearance that Starr’s office probed “a lot conspiracy theories, a lot of controversy. He took the time and made the effort to turn over every stone, to find the truth.” Kavanaugh declined to comment for this story.
Starr told The Post in an interview he felt strongly that his office had a responsibility to resolve the Foster matter once and for all. The office was under intense pressure by conservative writers and members of Congress who wanted an independent body to explore the murder possibility. There was also debate within Starr’s team about apparent oversights in the prior investigations.
“We cannot have — especially since I was charged with the investigation — an unsettled set of conspiracy theories that go unaddressed,” Starr said. “I viewed it as a matter of accountability, and also just for the good of the country.”
Kavanaugh’s inquiry did not put the matter to rest, however. Questions about Foster’s death continue to circulate today.
During the 2016 presidential campaign, Trump himself called Foster’s death “very fishy” during an interview with The Washington Post. “I will say there are people who continue to bring it up because they think it was absolutely a murder,” the candidate said.
Gunshot in Fort Marcy Park
Vincent Foster and Bill Clinton were childhood friends in Hope, Ark. Foster also became a friend and confidant of Hillary Clinton when they worked together at Little Rock’s Rose Law Firm.
With Bill Clinton’s 1992 election, the couple persuaded Foster to take the job of White House deputy counsel. Foster quickly became disillusioned by Washington’s partisan warfare and immersed in White House controversies, such as the firing of the travel office staff.
On July 20, 1993, on what appeared to be a routine day, Foster left the White House and drove to Fort Marcy Park in Fairfax County, neatly folding his coat on the passenger seat of his family Honda. He walked to a spot near a historic cannon, put the barrel of a .38-caliber revolver in his mouth and pulled the trigger, according to multiple investigations.
Foster’s death sparked intrigue. He had left no suicide note, but days after his death, a White House official found a torn-up piece of paper in which Foster listed things that were troubling him. “Here ruining people is considered sport,” he wrote.
U.S. Park Police officers were blocked when they went to the White House to retrieve his papers, one of the events that later spurred calls for a independent counsel.
Law enforcement authorities soon concluded that Foster died by his own hand. To them, the evidence was clear: He was depressed. He held an old revolver in his hand, which was covered in gunshot residue. On Aug. 10, 1993, the Department of Justice, FBI and Park Police jointly announced their conclusion that the death was a suicide.
Conservative talk show hosts and online activists branded the findings a sham. A theory surfaced that Foster knew too much about the Clintons’ financial affairs, including a land deal in Arkansas known as Whitewater.
Attorney General Janet Reno appointed Robert Fiske in January 1994 to independently examine Foster’s death and other questions. His inquiry took five months, concluding that “Mr. Foster committed suicide at Fort Marcy Park.”
On the Senate floor, then-Sen. David Pryor (D-Ark.) expressed relief that the matter was resolved. “I wonder what it would be like, Mr. President, had we kept on believing what some of the people on radio and television and in the news have stated,” he said.
But the investigation into the single gunshot wound was far from over.
An immersive investigation
After graduating from Yale Law School and serving as a clerk for two federal judges, Kavanaugh took a fellowship at the Office of the Solicitor General of the United States, then held by Kenneth Starr. Later, Starr recruited Kavanaugh to his law firm, Kirkland & Ellis.
But before Kavanaugh made a decision, Starr was named independent counsel and asked Kavanaugh to join him as associate counsel.
Kavanaugh and his colleagues thought Starr’s work would be over in a year or less, and Starr assigned him to the Foster matter.
Mark Touhey, a prominent Washington lawyer who served as Starr’s deputy, said Kavanaugh had all “the right credentials” and showed great promise, though he had much to learn about conducting an investigation. “Brett from the very beginning was somebody I could rely on, we could rely on, to dig in, get your hands dirty,” he said.
Touhey and a later Starr deputy, John Bates, now a U.S. District Court judge, both said Kavanaugh worked exhaustively, although he and some others in the office believed Foster had killed himself.
“The conclusion was that Vince Foster had died from his own hand,” Bates said. “There were a lot of outside forces, if you will, who were doubting it was a suicide, and the view was that we needed to do an extraordinary investigation . . . It took longer than it should have, probably.”
Starr told The Post that he urged Kavanaugh to pursue every lead and leave “no stone unturned.”
The office was also under pressure from the Clinton White House and its allies to stop investigating. They questioned Starr’s jurisdiction to investigate Foster, saying the effort was only a ploy to dig more deeply into the Clintons.
Kavanaugh’s 1995 memo to Starr and others offered detailed reasoning for a fresh examination of Foster’s death. Among the recipients was Samuel Dash, formerly the chief counsel to the Senate Watergate Committee, who was advising Starr’s office. The Post located Kavanaugh’s memo in Dash’s papers.
Kavanaugh argued that while Starr’s appointment did not mention Foster, “we have received allegations that Mr. Foster’s death [was] related to President and Mrs. Clinton’s involvement” with financial investments Starr was tasked to investigate.
He cited two theories — the allegation that Foster was murdered or killed himself because he knew too much about the Clintons’ finances. Kavanaugh’s memo said the claims justified continuing an investigation to “determine whether his death is in fact related to the subject matter of the appointment.”
Kavanaugh immersed himself in Foster’s final days. He viewed photographs of the body, went with federal investigators to interview witnesses and walked the park grounds with a forensic expert. The bullet that ended Foster’s life was never found.
Among those pressing Starr’s office was Christopher Ruddy, a journalist who wrote for conservative publications. Ruddy urged Starr’s staff to label the Foster examination a “homicide investigation,” according to files at the National Archives.
In the fall of 1997, Ruddy claimed a coverup in his book, “The Strange Death of Vincent Foster.” He criticized almost everyone involved, including Starr’s office, claiming it never resolved the case.
“With the ‘investigations’ of the Park Police, the FBI, Fiske, and Starr, this tiny square of land may yet become the symbol of a coverup conducted by people who have, with the help of the press, placed themselves above the law,” Ruddy wrote.
Ruddy, now the CEO of Newsmax and an informal adviser to Trump, declined to comment.
'Dogged at getting at the truth'
Starr issued the report on Foster’s death on Oct. 10, 1997, more than four years later. Its conclusion: Foster put a gun in his mouth and killed himself.
A suicide expert quoted in the report said he had “100 percent degree of medical certainty” that the death was a suicide.
Kavanaugh soon resigned from Starr’s office and joined Kirkland & Ellis. But at Starr’s request, he returned to the independent counsel’s office to support an effort in the Supreme Court to obtain notes that Foster’s lawyer made of a conversation with him just days before Foster’s death.
In his only Supreme Court appearance, Kavanaugh argued that the attorney-client privilege disappeared after Foster’s death. The court disagreed, voting 6-to-3 against Kavanaugh and Starr.
Kavanaugh stayed on to help Starr’s investigation into Clinton’s relationship with Lewinsky, which came to light in part because of Clinton’s testimony in a civil suit brought by Paula Jones, who accused Clinton of harassment.
Kavanaugh wrote a section of Starr’s report dealing with the grounds for impeaching Clinton.
After leaving Starr’s office and serving in the George W. Bush White House, Kavanaugh was nominated by Bush for a seat on the U.S. Court of Appeals for District of Columbia Circuit. In his 2006 Senate Judiciary Committee hearing, he was asked by Sen. Dianne Feinstein (D-Calif.) to reflect on Starr’s investigation.
Kavanaugh testified that in retrospect, “it was probably a mistake” for Starr to take on additional lines of inquiry beyond his original mandate to look into the Clintons’ Whitewater land deal and a small Arkansas savings and loan. He did not specifically mention the Foster matter.
Kavanaugh went further in a 2009 article in the Minnesota Law Review. He said that Starr operated under a “badly flawed” law, “particularly to the extent to which it allowed civil suits against presidents to proceed while the President is in office.”
Kavanaugh, who served as Bush’s associate counsel and staff secretary, said he came to believe that presidents are too busy to deal with civil lawsuits and criminal investigations, suggesting such matters be deferred until they leave office. He stressed that a malevolent president could still be impeached.
Kavanaugh was proud of his work on the Foster case. “What’s important in these investigations, however, is that the American people, at the end of the day, have confidence that the person was dogged at getting at the truth; that the person was not restricted by a narrow mandate . . . but the person really went after it hard. And that’s what Judge Starr did in his investigation,” he said on CNN in 1999.
Starr said he is ultimately responsible for the length of the investigation.
“That point has to be laid at my feet, not at Brett Kavanaugh’s feet,” Starr said.
Alice Crites contributed to this report.