An investigation into alleged leaks to the press from the office of independent counsel Kenneth W. Starr in the 1990s makes no reference to any role played by his one-time associate, Supreme Court nominee Brett M. Kavanaugh.
The 1999 report, made public Thursday by the National Archives, cleared Starr’s office of allegations that it improperly leaked grand jury testimony. Democrats on the Senate Judiciary Committee had urged its release in an effort to determine whether Kavanaugh was involved in such leaks.
Kavanaugh played a lead role in Starr’s investigation into the death of Clinton White House deputy counsel Vincent Foster and President Bill Clinton’s relationship with intern Monica Lewinsky. He was a go-to source for journalists and authors.
At the time, Clinton’s lawyers had filed a lawsuit claiming that Starr’s office had inappropriately leaked information from the grand jury investigating the Lewinsky matter. A judge ordered a “special master” to determine whether a number of stories about the Lewinsky probe had resulted from illegal leaking of grand jury testimony.
The once-secret report, by Judge John Kern III, largely cleared Starr and his office of wrongdoing. The report has some redactions, but those appear to be references to a person who objected to its release. The National Archives said that person “is not Judge Kavanaugh.”
The Kern report is the latest in a group of documents sought by Democrats in their efforts to vet Kavanaugh, whose nomination goes before the Senate Judiciary Committee on Sept. 4. Kavanaugh continued his series of one-on-one meetings with senators, huddling Thursday with five Democrats.
A crucial Republican swing vote, Sen. Lisa Murkowski (Alaska), met with Kavanaugh for an hour and called the session an “important step in my vetting process” as they discussed abortion rights, executive power, health care and Indian law. She stopped short of an endorsement, indicating she would wait until after the hearings next month to announce her decision.
The report came as Democratic senators stepped up pressure Thursday on Republicans to release more material related to Kavanaugh, saying the failure to disclose material from his 35 months as staff secretary to President George W. Bush had created a “constitutional travesty.”
Democrats also cited Kavanaugh’s potential role in deciding questions directly related to President Trump, whose former lawyer and campaign chairman were convicted of criminal offenses this week, to call for a delay in the confirmation process.
Sen. Richard J. Durbin (D-Ill.), a member of the Judiciary Committee, met Kavanaugh for a half-hour Thursday before declaring that the nominee’s views on impeachment remained unclear and that the “black hole” covering his time in the White House meant it was impossible to further probe his views on executive power and other contentious matters.
“That 35-month period of time — where Brett Kavanaugh served as staff secretary to President Bush — was a period of time that was rife with issues of grave constitutional moment. It’s the reason why the American people have the right to know what he said, how he advised the president, what he wrote,” Durbin said.
White House spokesman Raj Shah hailed the report released Thursday, saying it “refutes the latest false accusation by Senate Democrats and fully exonerates Judge Kavanaugh.”
But Richard Davidson, a spokesman for Sen. Sheldon Whitehouse (D-R.I.), played down its significance, noting among other concerns that it covered a period of time “during which Brett Kavanaugh was largely not an employee” of Starr’s office. Kavanaugh briefly left the independent counsel’s office and joined a private law firm before returning to work with Starr on the Lewinsky investigation.
Kern reviewed 24 news reports about that matter and in each one found no evidence of violations of the rule that requires secrecy around grand jury activities.
The 62-page report criticized Starr’s deputies for talking off the record with reporters, but Kern wrote that he had “rebutted” allegations that the independent counsel and his team improperly leaked grand jury material.
While the report found no violation of the grand jury secrecy rule in the Lewinsky matter, it did note instances of what may have been improper communications between prosecutors and journalists. For example, the report notes that unauthorized contacts between Starr’s office and a Washington Post reporter occurred and “would be brought to Starr’s attention for evaluation and, if necessary, appropriate action.”
Violating the rules governing grand jury secrecy is a serious matter. The law provides that a knowing violation of the rule may be punished as contempt of court and judges have imposed penalties using that remedy.
The Kern report noted that it is not illegal for prosecutors to speak to reporters, and stressed that a federal rule “only forbids disclosure of matters occurring before the grand jury.” Moreover, the report said, it was valid for members of Starr’s office to speak to the press because that helped prosecutors obtain leads from reporters “that aided its investigation.”
Gabriel Pogrund contributed to this report.