For questions of presidential power, Brett Kavanaugh has several answers
WASHINGTON — Just after Election Day in 2000, a group of lawyers descended on Florida for an epic legal battle that would decide the presidency of the United States.
Among the Republican foot soldiers was a 35-year-old lawyer named Brett Kavanaugh . He was dispatched to Volusia County, home of Daytona Beach, where the legal team for George W. Bush stayed at a Holiday Inn and ate local barbecue as they oversaw the recounting of nearly 200,000 ballots.
“It was the Wild West. Nothing like this ever happened before,” said Shannen Coffin, one of the Washington-based attorneys who scurried to Florida with Kavanaugh. “We were lieutenants in the battle. We organized the local cadre of lawyers, had some people hitting the books, and took affidavits to send to the team in Tallahassee.”
Kavanaugh examined irregularities in the votes, trying to identify problems on the ground that would help the Bush campaign’s legal team develop a strategy to win the election.
“Brett was the boss, basically,” said Coffin, who later was general counsel to Vice President Dick Cheney. “It was plain that Brett was in charge of what we were doing.”
While far from a household name then, Kavanaugh, whom President Trump nominated to replace the retiring Anthony Kennedy on the Supreme Court last week, has been closely involved with the biggest constitutional fights involving the presidency over the past several decades. A few years before he worked on the electoral stalemate that ended when the Supreme Court ruled Bush the president, Kavanaugh was a primary author of the Starr Report that led to the impeachment of Bill Clinton.
And now, depending on how the next months play out, he could be dealing with questions of whether a sitting president — the same one who nominated him — can be subpoenaed to testify before a special counsel investigation, or, if it comes to it, indicted.
His role in some of these past controversies — and particularly how they shaped his views on presidential powers and the possibility of impeaching a president — are expected to be a major focus of his confirmation hearings. He has a long record of writings on the topic, and has been so prone to insert himself into major moments that Senator Dick Durbin, the Illinois Democrat, has called him the “Forrest Gump of Republican politics.”
“Some might call Mr. Kavanaugh the Zelig of young Republican lawyers, as he has managed to find himself at the center of so many high-profile, controversial issues in his short career,” Senator Chuck Schumer, the New York Democrat, said during confirmation hearings in 2004 on Kavanaugh’s nomination as a judge to the US Court of Appeals for the District of Columbia Circuit. “If there has been a partisan political fight that needed a good lawyer in the last decade, Brett Kavanaugh was probably there. And if he was there, there is no question what side he was on.”
Kavanaugh has written and spoken in favor of strong executive power. And even though he was one of those most closely involved in investigating Clinton in the 1990s, he has more recently said that a sitting president should not face prosecution in criminal cases.
“The president should be excused from some of the burdens of ordinary citizenship while serving in office,” he wrote in the Minnesota Law Review in 2009. “Even the lesser burdens of a criminal investigation — including preparing for questioning by criminal investigators — are time-consuming and distracting.
“A president who is concerned about an ongoing criminal investigation,” he added, “is almost inevitably going to do a worse job as president.”
Some critics say his position is politically expedient. Although his writings occurred well before Trump took office, the current president could end up benefiting from Kavanaugh’s argument for presidential deference. And Democrats have started arguing that Kavanaugh should pledge to recuse himself from issues related to Trump.
Trump and his attorneys have grown increasingly hostile toward Robert Mueller, the special counsel investigating Russian interference in the 2016 election and the possibility that Trump’s campaign colluded with a foreign adversary.
In recent weeks they have put up barriers to any notion that the president would sit for an interview with Mueller as part of the investigation — which has raised the prospect that Mueller could subpoena Trump.
If he does, the case could go before the Supreme Court to decide whether a sitting president can be forced to comply with a subpoena.
The court has been down this road before, and shielding the president from subpoenas would count as a major reversal of precedent. When Richard Nixon challenged whether he should have to comply with a subpoena seeking tapes from his White House conversations, the Supreme Court ruled unanimously against him. And when Clinton challenged whether a sexual harassment suit should be allowed to proceed against him, the Supreme Court unanimously ruled that it could continue.
Kavanaugh’s background helped pave the way to legal prominence. He grew up in Bethesda, Md., attending the same prep school as future Supreme Court Justice Neil Gorsuch. He got his undergraduate and law degrees from Yale before he was hired by future Supreme Court Justice Elena Kagan to be a visiting professor at Harvard Law School.
But he first came to prominence in 1994, when, after wrapping up a clerkship for Supreme Court Justice Anthony Kennedy, the 29-year-old was brought on board the high-profile investigation being led by Kenneth Starr, the former solicitor general.
Starr was examining an Arkansas real estate deal that involved Clinton — though the long-running probe would eventually focus on the president’s affair with White House intern Monica Lewinsky.
The group working on what became known as the Starr Report would meet in a Washington, D.C., office across the street from what is now Trump International Hotel, filing into characterless cubicles and conference rooms to debate whether Clinton had obstructed justice — and how much detail about his affair with Lewinsky should be included in their report.
“Brett was a great colleague. He was obviously very smart and incredibly hard-working and perhaps most importantly had a great attention to detail and an insistence on getting things exactly right,” said Andrew Leipold, who, with Kavanaugh, was one of the co-writers of the report. “He was very focused on being fair in our evaluation of what was said — not just it could have meant this or could have meant this but lets take the side of what helps our case. No. It was what is the fair reading of this document.
“He was an important voice in what went in and how it was shaped and how it was worded,” Leipold added.
As one of his first duties, Kavanaugh reexamined the death of Vince Foster, a White House deputy counsel who some speculated was murdered, though it had been officially ruled a suicide. Kavanaugh concluded it was, in fact, a suicide.
The Starr investigation later became focused on Clinton’s affair with Lewinsky — and Kavanaugh had pushed for aggressive questioning about sexually explicit details, according to memos cited in Ken Gormley’s 2010 book, “The Death of American Virtue.”
“The President has disgraced his Office, the legal system, and the American people by having sex with a 22-year-old intern and turning her life into a shambles — callous and disgusting behavior that has somehow gotten lost in the shuffle,” Kavanaugh wrote in one of the memos. He listed 10 sample questions to ask Clinton, questions that spared nothing in graphic sexual detail.
But as Kavanaugh helped draft the report that would be sent to Congress — and made public — he objected to including some of the graphic details about the affair, according to Bob Woodward’s 1999 book, “Shadow: Five Presidents and the Legacy of Watergate.”
“The narrative shows how pathetic Clinton is, that he needs therapy, not removal,” Kavanaugh argued. “It’s a sad story. Our job is not to get Clinton out. It is just to give information.”
Starr kept the material in the report saying, according to Woodward’s book, “I love the narrative!”
Starr did not return requests for comment. Kavanaugh, who has not been granting interviews in the run-up to the confirmation hearings, also did not respond to requests for comment.
The report examined questions that are relevant now, including whether the president lied — and caused his aides to lie as well — or obstructed justice. It also criticized the president for not agreeing to testify before a grand jury.
After leaving Starr’s office, Kavanaugh wrote an article for the Georgetown Law Journal in which he questioned whether or not a president could be indicted.
“Whether the Constitution allows indictment of a sitting president is debatable,” he wrote in the 1998 article. He went on to outline a proposal for congressional legislation that would explicitly state that presidents cannot be indicted. He argued that a president should not be subject to criminal charges until after he leaves office or is removed by impeachment proceedings.
“Congress should clarify that a sitting President is not subject to criminal indictment while in office,” he wrote. “Such legislation not only would go a long way towards disentangling the appearance of politics from special counsel investigations, it also would greatly expedite those investigations where the President otherwise would be one of the subjects of the investigation.”
Kavanaugh’s supporters say that he was outlining a new proposal based off of his experience, rather than viewing it through a strictly partisan lens.
“If your thinking never evolves, if life experiences don’t shape your view on a good way to conduct business in this area, that would kind of be surprising,” said Leipold, who is now a professor at the University of Illinois College of Law. “I don’t think it’s a case of, ‘Well he thought it was OK when it’s a Democrat and now that it’s a Republican he doesn’t think so.’ That’s wrong. That’s not Brett.”
His supporters also say that his writings are being politicized and distorted.
“These writings [of his] are a lot more nuanced than he’s begin given credit for,” said Justin Walker, a law professor at the University of Louisville who clerked for Kavanaugh and Kennedy.
“He suggested some legislative adjustments to timing of investigations, but he in no way implied that the current timing is illegal,” he said. “Academics can write all they want about what they think the government should do. But judges base their decisions on what they can do. And Judge Kavanaugh has been crystal clear that the government can engage in an investigation of the president that looks a lot like the Mueller investigation.”