Brett Kavanaugh Urged Ken Starr Not to Indict Clinton While in Office

Brett Kavanaugh Urged Ken Starr Not to Indict Clinton While in Office

WASHINGTON — On Christmas Eve in 1998, five days after the House impeached President Bill Clinton, Brett Kavanaugh urged his boss — Kenneth W. Starr, the independent counsel — not to pursue a criminal indictment of Mr. Clinton until after he left office.

Judge Kavanaugh, now President Trump’s nominee to fill the Supreme Court seat left vacant by the retirement of Justice Anthony M. Kennedy, delivered the advice in a private memorandum made public on Friday by the National Archives in response to a Freedom of Information Act request.

It shows that Judge Kavanaugh believed — rightly, it turned out — that the Senate would fail to convict the president for the “high crimes and misdemeanors” that Mr. Starr and Mr. Kavanaugh had enumerated for Congress in the wake of Mr. Clinton’s affair with Monica Lewinsky.

“After the Senate has concluded, I would send a letter to the attorney general explaining that we believe an indictment should not be pursued while the president is in office,” Judge Kavanaugh wrote. He urged Mr. Starr to close the independent counsel’s office, which had spent four years pursuing Mr. Clinton, so “the next president can decide what to do.”

Judge Kavanaugh’s position is consistent with the doubts about the Starr inquiry that he offered publicly and privately even as he helped investigate Mr. Clinton. Earlier that year, he had told a legal symposium that he did not believe a sitting president could be indicted.

That view is likely to be welcomed by Mr. Trump, who could find himself the subject of a similar debate as Robert S. Mueller III, the special counsel, is investigating whether Mr. Trump or his associates conspired with Russians to meddle in the 2016 elections or obstructed justice by lying to investigators about the case.

But it may also prompt questions from Democratic senators at his confirmation hearing later this year. Democrats say they want to quiz Judge Kavanaugh on his views of executive power and whether he can fairly deal with issues involving the Mueller investigation that might come before the Supreme Court.

Judge Kavanaugh spent more than four years working as one of Mr. Starr’s deputies investigating Mr. Clinton’s White House. The documents released on Friday show that he was aggressive in pursuit of the president, and also deeply aware of the vitriolic criticism that was being leveled at Mr. Starr and the other lawyers on the investigation.

In a separate memo by Judge Kavanaugh written in early February 1999, he laments that the independent counsel’s office is being excoriated for the explicit details about Mr. Clinton’s sex acts with Ms. Lewinsky that were included in the report to Congress five months before.

Judge Kavanaugh writes to the other lawyers in the office that it was House leaders who decided to publicly release the entire Starr report — including the explicit narrative — without even reading it first.

“I believe we should never express any regret over the contents of the referral itself, as the referral simply summarized, organized and analyzed the relevant evidence,” Judge Kavanaugh wrote.

“We can and should express regret over how Congress handled the referral,” he added. “We can safely also express regret that we did not do more at the time to jump in front of the train and to try to prevent the House from immediately and publicly releasing all of the details.”

Judge Kavanaugh was responsible for drafting the “grounds for impeachment” section of the Starr report, according to lawyers who worked in the office. Others worked on developing the more explicit narrative that included details about the sex acts between the president and his intern.

Friends and former colleagues of Judge Kavanaugh have previously said that he urged Mr. Starr not to include the salacious sexual details in the report to Congress, for fear that it would damage the reputation of the independent counsel’s office. Mr. Starr rejected that advice.

One of the documents released on Friday is an early draft of the legal section that Judge Kavanaugh wrote. In the 132-page document, Mr. Kavanaugh methodically builds the case for the president’s impeachment.

“There is substantial and credible information that the president obstructed justice during the grand jury investigation,” he concludes at the end. “He refused to testify for seven months and simultaneously lied to potential grand jury witnesses, knowing that they would relay the president’s statements to the grand jury and thereby deceive the grand jury.”

But even as Judge Kavanaugh was drafting an aggressive legal argument to impeach Mr. Clinton, he was uneasy about the explicit descriptions of sex.

In a memo to his colleagues dated Aug. 31, 1998, Judge Kavanaugh asks them to respond to a dozen questions about the draft of his argument. Question No. 9, in bold and all caps, was: “IS IT TOO GRAPHIC?”

The next question was: “SHOULD IT BE MORE GRAPHIC (kidding)?”

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