Give credit to Brett Kavanaugh’s political opponents where it’s due. They finally hit on a line of attack against the Supreme Court nominee that Donald Trump might actually care about, even if it puts the media in a tough spot. “President Donald Trump has waged war leakers,” Politico notes, but in Kavanaugh Trump “has picked someone well-versed in the swampy art of off-the-record briefings and anonymous quotes.”
Well …. maybe:
While Starr had spokespeople, “he also had attorneys like Kavanaugh contact people who might have information to come to the office and offer to guide the press about the work of the office,” said former Iran-Contra prosecutor John Barrett, now a law professor at St. John’s University.
Writer and businessman Steven Brill, who set off a firestorm in 1998 with a cover story in his magazine, Brill’s Content, on Starr’s alleged leaks to the press, said Kavanaugh needs to offer a more detailed account of his interactions with reporters during the Whitewater probe.
“If what he did was not improper, why didn’t he do it on the record? The point is they all knew it violated rule 6(e),” Brill said, referring to a federal court rule protecting grand jury secrets. “Brett was involved.”
Apparently, Kavanaugh’s questionnaire submission acknowledges his contacts with the media during the Whitewater probe, including some on background. The question of leaks in an investigation did come up as a contentious issue in 1998, and critics along with the Bill Clinton White House painted them as proof that Starr’s probe was politically motivated. It’s one reason that the independent counsel law was allowed to expire and eventually replaced with the current special-counsel law, which put such investigations more squarely under the Department of Justice’s policies and practices.
Still, the beef here is with Starr more than Kavanaugh, and arguably doesn’t touch Kavanaugh at all, especially on 6(e) and grand-jury proceedings. Kavanaugh left Starr’s office in November 1997 and didn’t return until April 1998; the Monica Lewinsky story broke during his absence, as did most (not all) of the other alleged grand-jury leaks. That becomes clear farther into Politico’s reporting, which also notes that the DC circuit appellate court ruled in 1999 that most of the alleged leaks didn’t actually violate the law or court rules anyway.
On top of that, it’s an old beef. Democrats had plenty of opportunity to raise this issue in Kavanaugh’s nomination to the appellate court, especially since they stalled it for three years before finally allowing a floor vote for confirmation. It’s not as if the controversy hadn’t been well known by that time, nor Kavanaugh’s role in briefing reporters. The Whitewater probe was 20 years ago, and Kavanaugh’s been compiling a stellar record on the appellate court for the last twelve years, which is a lot more apposite to his nomination than press contacts while working for Starr.
Politico notes that it’s been asked and answered already:
Kavanaugh’s questionnaires for his appeals court nomination a decade ago say that among the topics on which he offered legal advice during his time in Starr’s office was analyzing the office’s “Rule 6(e) obligations” — legal jargon for determining what is and is not covered by grand jury secrecy. He acknowledged that work again in the questionnaire submitted Friday for his Supreme Court nomination.
Other documents from and about Kavanaugh are already public in the files of other Starr aides. They show Kavanaugh’s involvement in strategizing how to rebut media criticism of the Foster investigation.
And what will be the media reaction to this complaint — that a government source was too cooperative with them? It might serve as a warning to others in government positions that the media will be happy to later pillory the same sources on which they relied for their stories, if they decide they don’t like their politics and as long as someone else outs them. And actually, that’s a useful reminder that leaks are inherently manipulations by both the leaking and the reporting parties — necessary at times, but too often self-serving and gossipy rather than substantive.
This looks like a tempest in a teapot, and an old tempest at that. Will this old news convince Rand Paul, Susan Collins, or Lisa Murkowski to oppose his confirmation? Not a chance.