The Daily - Brett Kavanaugh’s Change of Heart

Episode Date: July 11, 2018

Judge Brett Kavanaugh, who has been nominated to replace Justice Anthony Kennedy on the Supreme Court, once made the case for impeaching a president. He now says that was a mistake. Guest: Mark Landler, a White House correspondent for The New York Times, who examines why Judge Kavanaugh’s views have shifted. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, President Trump's choice for the Supreme Court, Brett Kavanaugh, once made the case for impeaching a president. Why he now thinks that was a mistake. It's Wednesday, July 11th. It was the early 1990s, and Brett Kavanaugh was a young, freshly minted graduate of Yale Law School. Mark Landler covers the White House for The Times. He'd grown up in the Washington area.

Right after law school, he got a couple of very prestigious clerkships with federal appeals court judges. And then he found his way to the office of the Solicitor General. This was during the George H.W. Bush administration. The Solicitor General who hired him was a lawyer named Ken Starr. At the time, Ken Starr was a respected conservative lawyer, member of the Washington Republican legal establishment. Now, he becomes much better known later on when he is appointed to investigate President Clinton. And so in 1994, he takes on this job,

and he brings along with him his former aide from the Bush administration, a young lawyer named Brett Kavanaugh. And what happens in the investigation that Ken Starr heads up? The tangled relationship between an Arkansas land deal, a savings and loan, and Hillary Rodham Clinton's former law firm is again under scrutiny today. It begins as an investigation of a land deal in the Ozarks. That's the Whitewater affair. But over time, it morphs into something much larger, much murkier, and ultimately much seamier, involving the sex life of the President of the United States, Bill Clinton, and in particular, his relationship with a young White House intern named Monica Lewinsky.

CNN has confirmed that Whitewater counsel Kenneth Starr has been granted permission to expand his investigation. He will be looking into new allegations that President Clinton had an affair with a former White House intern and then urged her to lie about it. And suddenly, for a young, ambitious Republican lawyer, Brett Kavanaugh, it places him at the center of this enormous story. It forces him to confront some of the biggest questions relating to the separation of power, the right of a president, the right of investigators to hold a president subject to the law. All of these questions are suddenly front and center for a lawyer still in his 30s. And what are Kavanaugh's specific contributions to Starr's approach to the prosecution of Bill Clinton? Well, we know for one thing that Brett Kavanaugh wrote a memo to Ken Starr before Starr and his

team were going to depose President Clinton in this investigation. And that memo is remarkable on a couple of grounds. First, it makes the case that Starr should not cut President Clinton any slack. It, in fact, says that President Clinton should not be allowed off the hook unless he's, A, willing to resign his office or B, willing to confess to perjury and issue a formal apology to Ken Starr and his team. Secondly, it lays out a set of suggested questions for the prosecutors to ask President Clinton. And these questions are really remarkable in how explicit they are, in how directly they go to the nature of the sexual relationship between President Clinton and Monica Lewinsky. You know, without getting into grisly detail, they talk about the exchange of bodily fluids, the use of cigars as a sex toy. They leave very little to the imagination.

And certainly they go well beyond what any prosecutor had ever asked any sitting American president. And Ken Starr was encouraged to ask them by Brett Kavanaugh. So it sounds like Kavanaugh is counseling Ken Starr to go after President Clinton in the most aggressive way possible. That's right. This is a warrior's approach to the investigation. It's a no-holds-barred approach that's designed to put the president off balance and to get right to the heart of the matter. Good morning, Judge Starr.

How are you all doing? Good morning. Judge Starr, now that you've submitted your report on Mr. Clinton, what mandate do you have to continue your investigation? It's in Congress's hands. That's all I'm going to say. Thank you. Brett Kavanaugh authors the part of Ken Starr's report to Congress that lays out the grounds for impeaching President Clinton for his conduct.

Today we find ourselves considering a resolution to release portions of the independent counsel's report. The information will be made available to the public and to the president at the same time. You were talking about 445 pages. I think the president has caused us to be very worried. We don't know everything that's in the report, so You were talking about 445 pages. I think the president has caused to be very worried. We don't know everything that's in the report, so we'll have to wait and see. But I don't think people will be sleeping well around the White House for the next few days. There are 11 grounds for impeachment. And what's interesting about these 11 grounds is that a couple of them are directly relevant

and apply rather seamlessly to the situation that President Trump finds himself in today with regard to the investigation of his ties to Russia. What do you mean? Well, the first ground that stands out is one that says that President Clinton tried basically to obstruct the grand jury's investigation by refusing to testify for seven months. And that's very relevant because President Trump and his lawyers are in the midst of a battle of wills with the special counsel in the Russia investigation, Robert Mueller. Robert Mueller has asked President Trump, invited him to testify,

but the president's lawyers have kept throwing up hurdles to that. It seems like you're moving more and more against the idea of the president sitting down with Bob Mueller. That could be true. Yeah. We haven't made a final decision. There's still a slight opening. The next ground that stands out is one that says that President Clinton essentially misled the American people about the nature of his relationship with Monica Lewinsky and allowed aides close to him, including his press secretary, to basically amplify that wrong story to the American people. This is relevant to the Trump case because, if you recall,

Donald Trump had a hand in drafting a White House statement after his son and his son-in-law, Donald Trump Jr. and Jared Kushner, met with a Russian official. Don Jr. initially claimed he and the Russian lawyer discussed adoptions and that it was not a campaign issue. Then days later, emails revealed Don Jr. agreed to the meeting because he was promised dirt on Hillary Clinton. They put out a misleading statement about this meeting to The New York Times and later denied that President Trump had a hand in drafting it. So, again, the link to how the Starr report saw obstruction of justice is very clear to how President Trump handled the investigation of the Russia issue. So Kavanaugh's role in the Starr Report and in laying out these grounds for impeachment would seem like a dream to Democrats in the Senate who now have to confirm Kavanaugh. And I imagine that they are considering this document and that they're seeing the same parallels that you are to this moment.

Absolutely. They look at this document and they see an opportunity to turn this confirmation hearing into a referendum on the standards for impeaching not a president 20 years ago, but a president today. And President Trump, of course, also knows about Kavanaugh's history. So why would he nominate someone to the Supreme Court who clearly thinks a president should be impeached for doing the very same things that this president is under investigation for doing himself? Well, that would be true,

except for one major twist in this story, which is that Brett Kavanaugh had a change of heart. We'll be right back. So lay out for me this change of heart on the part of Brett Kavanaugh. So when Brett Kavanaugh wrote the grounds for impeachment in the Star Report, he had worked in the administration, but he hadn't yet had a job in the West Wing. He hadn't seen the work of a president up close. And then he got that experience. He worked for George W. Bush first in the White House counsel's office, but then crucially, he got the job of staff secretary to the president. office, but then crucially, he got the job of staff secretary to the president. Staff secretary is one of these jobs that the average American knows nothing about, but that is absolutely crucial

to a president's daily life. The staff secretary essentially collates all the documents that flow to the president. These are the most sensitive documents on intelligence, on political analysis, on personnel matters. So the staff secretary has perhaps an unrivaled window into the kinds of issues and pressures that are bearing down on a president every single day. And what is Kavanaugh seeing in these documents and in this role that causes his perspective to shift? Well, Kavanaugh sees everything. He's in the White House on the day of the 9-11 terrorist attacks. He's actually ordered to flee the building with his colleagues. He watches the ramp up in the war on terror, the war in Afghanistan.

He is then on hand to see President Bush invade Iraq and around for the very negative blowback on the Iraq war when things start to go badly. He sees the mounting opposition to President Bush in Congress. He watches President Bush's popularity ratings plummet. He sees a president, in short, going through the most dire pressures that face almost any modern-day president. And he watches all of it every single day over a period of several years. I think Kavanaugh realizes very simply that the job of president is more difficult than any other civilian job in the U.S. government,

and as such, should be subject to different rules. And he actually lays out the case for this in very vivid language in a law review article he writes many years later, in 2009. He says presidents should not be subject to criminal or civil investigation or indictment while they're in office. If they are guilty of wrongdoing, they can be indicted and tried for wrongdoing once they leave office. But while they're in office, they shouldn't be subject to the distraction and the burden of having to answer questions, of having a legal shadow hanging over them while they are also performing the duties of president. This is what he says. He says, this is not something I necessarily thought

in the 1980s or 1990s. Like many Americans at that time, I believe that the president should be required to shoulder the same obligations that we all carry. But in retrospect, that seems a mistake. Looking back to the late 1990s, for example, the nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal investigation offshoots.

Which include Monica Lewinsky. Monica Lewinsky. And everything that Brett Kavanaugh became involved in investigating. All of which culminated in President Clinton's impeachment in 1998. I mean, this is fascinating and really striking because Kavanaugh seems to essentially be saying that Osama bin Laden could have possibly been stopped and that perhaps 9-11 could have been avoided if the Starr investigation, which Kavanaugh was intimately involved with, had not been such a distraction for President Clinton. for President Clinton. It's a very rare case to see someone whose career is this carefully managed, who is this ambitious,

who has these kinds of credentials, and yet at the same time makes an admission of this magnitude. It's really quite remarkable. He's basically saying that he regrets his role in the Starr investigation. And not only that, he regrets the existence of the Starr investigation. He argues elsewhere that the law should be changed

so that independent counsels on the model of Ken Starr don't exist anymore. He thinks the whole institution is wrongheaded. So it's clear that a very different Brett Kavanaugh has been nominated to the Supreme Court now than the Brett Kavanaugh who coored that report was an aggressive exponent of the idea that no one, not even the president, should ever be above the law and that prosecutors should bring the full weight of their office to bear against a president whom they suspect of wrongdoing. The Brett Kavanaugh today argues that the president, in a way, stands alone. He or she should not be subject to civil or criminal investigations while they're in office.

It simply imposes too great a burden on someone who is already in a job that he would argue is the hardest in the world. So how will all of this factor into Kavanaugh's Senate confirmation hearings in the coming weeks? Well, there's no question that the Democrats will

seize on this to ask him some pretty pointed questions about what he thinks today about the grounds for impeaching a president on the one hand, and on the other hand, what protections he thinks a president deserves from either an investigation or an indictment. So this cuts in both directions. He can both be asked to square his writings in 1998 with President Trump's current legal predicament, or he can be asked, are you now in, protecting the president who appointed you, even though you went so zealously after a president from the other party 20 years ago? Right. You could easily imagine Democrats asking him if this is a convenient and partisan epiphany he had, that it's appropriate to go after a Democratic president. But once you work for a Republican president, you no longer think it's right to go after a Democratic president. But once you work for a Republican president, you no longer think it's right to go after any president.

Yeah, that's right. Now, I think Kavanaugh would argue, look, I was very straightforward in my law review article. I admitted that this was a distraction that President Clinton shouldn't have had to shoulder either. But the truth is, the experience that led to his change of heart was in the service of a Republican president. And the nomination he has now gotten was put through by a Republican president.

And how do we expect Republicans to see this experience? Well, I think Republicans will be very comfortable with Judge Kavanaugh's writings on the need to protect, to insulate a president from civil or criminal investigation, because they feel that their president, President Trump, needs to be left alone, and that in a way it would lift a cloud from over his head. When it comes to the Mueller investigation. That's right. But, Mark, how relevant is all of this really to the Supreme Court right now?

In other words, how likely is it that any case involving President Trump would get to the Supreme Court? Because I thought that Mueller has already said that he does not plan to indict the president. Well, even if Mueller decides not to indict a sitting president, and most people who know Mueller believe that it's likely he wouldn't, there is another way it could become relevant very quickly in the context of the Supreme Court. Mueller, as we've noted earlier, has invited President Trump to answer questions before his team. The president has so far resisted. If Mueller were to subpoena the president and the president were to resist that subpoena, citing the power of his office, that is a matter that could quickly rise up and find itself before the Supreme Court. And one of the nine justices ruling on that would be Brett Kavanaugh. And given what Kavanaugh has said and written,

it would seem that he would want to protect the president from such a subpoena. That's right. Everything in Kavanaugh's writings and his public statements on this topic suggest that his goal will be to insulate the president, to protect the president from having to shoulder a burden that he believes no sitting president from having to shoulder a burden that he believes no sitting president should have to shoulder. So this is quite an extraordinary turn of events here in terms of the journey that Brett

Kavanaugh has made between the early 1990s and now. Yet it is remarkable to think about this young lawyer who made such an aggressive case in favor of impeaching one president is now appointed to the Supreme Court by another president facing many of the same legal pressures as the president he fought against. Donald Trump, he's named a Supreme Court justice who's had a change of heart and is now heavily inclined to protect President Trump from the very pressures he brought to bear on President Clinton. You couldn't write a script like this. Thank you, Mark. Thank you very to know today. President Trump, with the nomination of Judge Kavanaugh, has fulfilled or is fulfilling two of his campaign promises. First, to undo women's reproductive freedom.

Second, to undo ACA. And so I will oppose him with everything I've got. On Tuesday, Senate Democrats began an aggressive campaign to defeat Brett Kavanaugh's nomination by portraying him as an ultra-conservative figure who would roll back legal protections cherished by the left. At a time when we have the Mueller investigation, Judge Kavanaugh is way at the extremes. In explaining why he would oppose the choice, Schumer also pointed to Kavanaugh's evolving views on investigating a president. He believes a president shouldn't even be

investigated. So with the Mueller situation, with the overreach of presidential power, we shouldn't put him on the bench. But the White House expressed confidence that it had enough Republican support to confirm Kavanaugh. And Senate Majority Leader Mitch McConnell mocked Democrats for what he called, quote, cheap political fear-mongering. A number of our Democratic colleagues could not even wait until the president's announcement last night before launching attacks on his nominee. This was, in some cases, quite literally a fill-in-the-blank opposition. They wrote statements of opposition only to fill in the name later. Now, Madam President, this is a telltale sign that some of our colleagues are throwing thoughtful, independent judgment out the window.

That's it for The Daily. I'm Michael Barbaro. See you tomorrow.