Kavanaugh argued that a president can be impeached for lies, cover-ups and refusing to testify

Aug. 23, 2018 11:54 AM PT

Reporting from Washington — The young attorney decided the president deserved to be forced from office for “his pattern of revolting behavior” and the “sheer number of his wrongful acts.”

“The president has disgraced his office.… He has lied to his aides. He has lied to the American people,” Brett Kavanaugh wrote in a 1998 memo to his colleagues. “I’m strongly opposed to giving [him] any ‘break’ … unless he either resigns or … issues a public apology.”

Kavanaugh, a fast-rising Republican legal star, then 33, went back to work on a 132-page memo to his boss, independent counsel Kenneth Starr, that outlined the grounds for impeaching President Clinton.

It was 20 years ago this month that Kavanaugh, President Trump’s Supreme Court nominee, set out his broad view of obstruction of justice and of what constitutes an impeachable offense, arguing the president could be removed from office even for a rarely charged crime — in this case, lying under oath in a civil deposition, to deny a sexual affair with a 22-year-old White House intern. By repeating false stories for months, lying to the public and his aides, trying to cover up the affair with Monica Lewinsky and helping her find a job in New York, the president, Kavanaugh argued, engaged in “a conspiracy to obstruct justice.”

Now as Kavanaugh prepares to go before the Senate on Sept. 4 for his confirmation hearing, there is again talk of impeachment in Washington.

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This week, President Trump was implicated in a scheme to pay hush money shortly before the 2016 election to two women to cover up sexual affairs. His own former attorney, Michael Cohen, has pleaded guilty to violating campaign finance laws and accused Trump of directing him to make the payments. Trump has publicly denied the women’s claims and denied knowing about the secret payments in advance, though he can be heard on tape discussing how to make them.

Trump is also under investigation by Special Counsel Robert S. Mueller III for possible collusion between his campaign and Russia, and obstruction of justice in trying to hinder that probe.

“The Kavanaugh argument in the Starr Report is highly relevant now,” says New York lawyer David R. Lurie, because it portrayed a president’s false statements and public denials as reflecting a pattern of obstructing justice. If investigators “wanted a template for charging the president with acts of obstruction meriting impeachment, they could do worse than using sections of the Starr Report drafted by Kavanaugh,” Lurie said.

The Constitution says the president can be impeached for “treason, bribery and other high crimes and misdemeanors.” While scholars disagree on how to define an offense that warrants impeachment, most maintain it involves a significant abuse of power by the president.

In 1974, President Nixon faced impeachment for obstruction of justice for arranging to pay hush money to the burglars who broke into the Watergate offices of the Democratic National Committee, and for intervening with the CIA and the FBI to thwart the investigation.

Starr’s investigators did not have evidence that Clinton used the machinery of the U.S. government to cover up his crimes as Nixon did. They did, however, have evidence he had lied when questioned under oath by lawyers for Paula Jones, who had sued him for sexual harassment.

Critics of President Trump say he could be vulnerable to obstruction of justice charges for firing FBI Director James B. Comey over the Russia probe and for drafting a misleading statement about a Trump Tower meeting with a Russian lawyer during the 2016 campaign. Mueller has not alleged any legal wrongdoing by the president. Trump has repeatedly denied that his campaign coordinated with Russia’s covert effort to defeat Hillary Clinton.

If confirmed to the Supreme Court, Kavanaugh would not likely face the question of what warrants impeachment. That is a question for Congress. But some legal experts say the Starr Report’s roadmap could influence a future congressional debate if Trump faces impeachment.

“If the president’s telling a false story to the public or to his secretary is an impeachable offense, how is that different from the president tweeting a false story? It could be a signal to witnesses,” said University of Chicago law professor Daniel Hemel. “You can imagine [Senate Minority Leader Charles E.] Schumer turning to the Republicans and saying, ‘We should rely on the Kavanaugh argument for impeachment.’ Of course, [Kavanaugh] won’t have a vote, but if there is an impeachment, Kavanaugh would be looming in the background.”

In 1994, after Kavanaugh finished a one-year clerkship at the Supreme Court, Starr recruited him to join his investigation of Clinton and the Whitewater land deal in Arkansas. He spent three years re-investigating the suicide of White House deputy counsel Vince Foster. Conspiracy theorists had alleged Foster may have been murdered to cover-up Bill and Hillary Clinton’s role in Whitewater. Kavanaugh and Starr’s staff concluded his death was indeed a suicide.

Kavanaugh briefly left the counsel’s staff, but returned in the spring of 1998 as the prospect of impeachment loomed. For the first time in his career, he would play a major role in a high-stakes constitutional clash.

Kavanaugh voiced disgust with Clinton and said he found his behavior “abhorrent.” The day before the president was set to testify before the grand jury, Kavanaugh urged his colleagues to ask the president highly explicit questions about sex acts to prove he had lied in the earlier deposition.

“It may not be our job to impose sanctions on him, but it is our job to make his pattern of revolting behavior clear — piece by painful piece — on Monday,” he wrote in a memo released this week by the National Archives.

Clinton had continued to deny his affair with Lewinsky, in public and in private. Kavanaugh argued that the president’s repeated false statements amounted to obstruction of justice and witness tampering because his statements could influence the grand jury. He cited Clinton’s refusal to testify for seven months as grounds for impeachment, even after the president had changed his position and testified.

Andrew D. Leipold, a University of Illinois law professor who worked on the Starr Report, said that while Kavanaugh drafted the impeachment articles, “everyone knew this was a report that reflected the views of the office and ultimately of Ken Starr.”

Clinton’s defenders and most Democrats questioned whether the president’s lies and cover-up amounted to a “high crime” warranting impeachment.

Leipold said the final decision rested with Congress. “Was the referral aggressive in setting forth the grounds for impeachment? Some people say yes,” Leipold said. “I won’t say everything was right, but I think we set forth truthful allegations. And what constitutes a ‘high crime’ is a political question for Congress.”

Critics alleged Starr’s investigation was driven by partisan politics. “They were political warriors and Federalist Society true believers,” said Nelson W. Cunningham, a former federal prosecutor and a White House lawyer under Clinton. “Starr had not been a prosecutor, and Kavanaugh had no credentials as a prosecutor or investigator. They were on a mission to bring down the president. No ordinary citizen would be charged for lying in a civil deposition denying an affair.”

In the November election, Democrats surprised political analysts by winning five seats, prompting House Speaker Newt Gingrich to resign. But the Republicans opted to press forward in December and rejected calls to pursue a less aggressive path by censuring Clinton instead. On a largely party-line vote, the House approved impeaching Clinton for perjury and obstruction of justice.

A conviction required a two-thirds vote in the Senate, and to no one’s surprise, the president was acquitted in February 1999. Sen. Mitch McConnell (R-Ky.), now the majority leader, and then-Sen. Jeff Sessions (R-Ala.), now the attorney general, were among the Republicans who voted to remove Clinton for obstructing justice.

In his confirmation hearing before the Senate Judiciary Committee next month, Kavanaugh will face several other veteran lawmakers who played roles in the Clinton impeachment drama. Sen. Lindsey Graham (R-S.C.) was one of the House members who argued for ousting the president, and Sens. Charles E. Grassley (R-Iowa) and Orrin Hatch (R-Utah) voted for conviction.

Schumer fought the charges in the House and then voted to acquit Clinton as a newly elected senator. Sens. Dianne Feinstein (D-Calif.), Patrick J. Leahy (D-Vt.) and Richard J. Durbin (D-Ill.) also were among the Democrats who voted to acquit the president.

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