The memo provides a contrast to the genial, soft-spoken nominee who chooses every word carefully as he makes the rounds of the Senate before his Sept. 4 hearing before the Judiciary Committee. It reveals a hardball tactician who argued forcefully that Starr had the right to press the president for answers, a view he later shifted, saying presidents are too busy to be subject to such investigations while in office.
Kavanaugh’s views on executive power could be newly relevant if he is confirmed and asked to rule on matters related to special counsel Robert S. Mueller III’s investigation of President Trump.
In the weeks before Kavanaugh’s memo, Clinton attempted to avoid or limit Starr’s questioning — just as Trump is trying to do in Mueller’s Russia investigation. Kavanaugh wrote at the time that while he was “mindful of the need for respect for the Office of the President,” it was the counsel’s duty to gather the facts or face being charged with conspiring “to conceal the true nature” of what happened.
Kavanaugh was meeting with Sen. Dianne Feinstein (D-Calif.) when the memo was made public. Feinstein is among the Democrats on the Judiciary Committee slated to question Kavanaugh in hearings that are expected to include a focus on his views of executive power.
Sen. Mazie Hirono (D-Hawaii), another member of the Judiciary Committee, said she expected Kavanaugh’s shifting views on investigations of presidents to come up during hearings. “I think he’s definitely changed his mind,” she said. “. . . He said, ‘Well, the president’s job is so hard, and the president should be left alone to do his job.’ Nobody should be above the law.”
Kavanaugh, through a spokesman, and the White House declined to comment on the memo.
“I remember that Brett immediately regretted the tone of the memo, because he had been sleep deprived,” Bittman said in an interview.
After reviewing the memo Monday, Bittman said: “I have no problem with the questions. They were all among the questions we had been discussing at length prior to Brett’s memo to help determine whether the legal elements of crimes had occurred.”
Starr said in an interview that Kavanaugh’s questions “make sense” because “there clearly was frustration throughout the office with the president’s obstructionism and constant attacks coming out of the White House, and we all felt that very keenly.”
While Kavanaugh believed that Starr had an obligation to interview and investigate Clinton, his more recent view, as expressed in a 2009 Minnesota Law Review article, has led to questions about what would happen if, as a Supreme Court justice, he were asked to rule on whether Trump must comply with a subpoena from Mueller or whether the president had the right to fire the special counsel.
Stephen Vladeck, a law professor at the University of Texas who has served on professional panels with Kavanaugh, said the memo raises the question of whether Kavanaugh today disagrees with what he wrote.
“Either his views really have changed over time to reflect far more of a belief in the importance of protecting presidential prerogative,” Vladeck said, “or his views on presidential prerogative differ depending on what he thinks about the current officeholder.”
Kavanaugh’s Aug. 15, 1998, memo showed him to be harsher on Clinton than even some in Starr’s office. He wrote that Clinton had engaged in “callous and disgusting behavior.” Arguing fiercely for the power of the independent counsel’s office, Kavanaugh wrote that “it is our job to make his pattern of revolting behavior clear — piece by painful piece.”
The memo had the subject line: “Slack for the President?” It came after Starr’s office interviewed Lewinsky and learned many alleged details of the president’s relationship with the intern. Kavanaugh wrote that Clinton had turned Lewinsky’s life “into a shambles.”
Starr’s deputies were on the verge of interviewing the president, hoping to determine whether he had lied in a civil suit brought by Paula Jones, a former Arkansas state employee who had accused Clinton of sexual harassment. During his lawsuit testimony, Clinton swore that he had not had sexual relations with Lewinsky. Kavanaugh and other Starr deputies were convinced that the president had lied.
Some in Starr’s office, however, did not want to ask the president sexually explicit questions out of respect for the office, but Kavanaugh pushed back.
“After reflecting this evening, I am strongly opposed to giving the President any ‘break’ in the questioning regarding the details of the Lewinsky relationship” unless he “resigns” or “confesses perjury,” Kavanaugh wrote, continuing: “He has required the urgent attention of the courts and the Supreme Court for frivolous privilege claims — all to cover up his oral sex from an intern. He has lied to his aides. He has lied to the American people. He has tried to disgrace you and this Office with a sustained propaganda campaign that would make Nixon blush.”
Kavanaugh then listed his proposed questions, including the one about the cigar, and several other equally explicit ones, including:
“If Monica Lewinsky says that on several occasions in the Oval Office area, you used your fingers to stimulate her vagina and bring her to orgasm, would she be lying?”
“If Monica Lewinsky says that you masturbated into a trashcan in your secretary’s office, would she [be] lying?”
Kavanaugh did not attend the Clinton interview. A transcript shows that Bittman told the president that he was going to ask “uncomfortable” questions about whether the president had been “physically intimate” with Lewinsky. Clinton sought to cut off such questions by delivering a general statement, saying he believed that, while his conduct with Lewinsky was “wrong,” he did not believe that it constituted “sexual relations.”
Variations of some of the Kavanaugh questions were asked. For example, another Starr deputy asked the president, “If Monica Lewinsky says that you used a cigar as a sexual aid with her in the Oval Office area, would should be lying?” Clinton replied, “I will revert to my former statement.”
David Kendall, who was Clinton’s attorney at the testimony, said that shows Clinton “refused” to go beyond the statement.
After the interview and the investigation concluded, Kavanaugh was assigned to be the prime author of a section of the report that laid out the grounds for impeachment. He did not write the section that explicitly detailed the sexual relationship between Clinton and Lewinsky. The report was sent to the House, which released it without redaction.
Kavanaugh testified during his 2004 confirmation hearing to be a federal appeals judge that he regretted that Congress released the sexually explicit details.
“I personally regret how that report was released because I think it was — parts of it that were released were unnecessary to be in the public domain,” Kavanaugh said.
It is not clear whether the Senate Judiciary Committee knew that he had proposed questions for Clinton, but the matter did not come up at the hearing.
Kavanaugh later also regretted the way the Starr investigation subjected Clinton to an investigation during his presidency, particularly after his experience working for five years as associate counsel and staff secretary to President George W. Bush.
In the Minnesota Law Review article, Kavanaugh wrote that presidents should not be distracted by civil lawsuits or criminal investigations while in office. He wrote that presidents are too busy to deal with such “time-consuming and distracting” matters, which he said “would ill serve the public interest, especially in times of financial or national security crisis.” He said a truly corrupt president could be impeached or investigated after leaving office.
After serving as Bush’s aide, he also modified his views on executive power, believing that a president has privileged authority to withhold certain documents.
Mike DeBonis and Seung Min Kim contributed to this report.