Brett Kavanaugh said during an event in 2000 that Congress had ceded to an independent counsel its “constitutional duty” to investigate former President Bill Clinton, remarks that give Democrats new fodder to tar the Supreme Court nominee as potentially partial to President Donald Trump in any future showdown with special counsel Robert Mueller.
A partial videotape of Kavanaugh’s comments during a Duke University discussion on the Clinton impeachment, obtained by the office of Sen. Cory Booker (D-N.J.) and shared with POLITICO, represents his fourth public statement thus far that Congress should play the primary role in investigating a sitting president — rather than an independent counsel.
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Kavanaugh’s past skepticism that a sitting president can be indicted, though it comports with previous Justice Department opinions, is a major flash point for Democrats who warn that his confirmation would give Trump a reliable ally if Mueller’s Russia investigation sparks a legal showdown with the White House that goes all the way to the high court.
In his 2000 comments at Duke, Kavanaugh drew on his experience on Kenneth Starr’s staff during the independent counsel’s investigation of Clinton to ding Congress for opting, “in abdication of their constitutional duty,” to hold off on their own inquiry while Starr finished his work.
“In the old days, if you had a serious allegation against the president — and there was a common understanding that the president could not be indicted while he was in office — the Congress of the United States would look into the allegation immediately and would get the facts. They can depose witnesses and find out the truth,” Kavanaugh said at the time.
It’s not the first time Kavanaugh has described the primacy of Congress’ role in investigating a president as a constitutional matter. In 1998 remarks at Georgetown Law School, Kavanaugh referred to “a lurking constitutional issue for a long time, which at some point here should be resolved, so we can determine whether the Congress or an independent counsel should investigate the president when his conduct is at issue.”
“I tend to think it has to be the Congress,” Kavanaugh said then. He wrote in a similar vein in a 1998 Georgetown Law Journal article: “The Constitution itself seems to dictate, in addition, that congressional investigation must take place in lieu of criminal investigation when the President is the subject of investigation.” In 2009, he published an article proposing that Congress consider “exempting a president — while in office — from criminal prosecution and investigation.”
Kavanaugh’s “statements here are yet another indication that he views this matter in constitutional terms, and not just as a policy preference,” Booker said in a statement.
“This raises the troubling question of whether President Trump chose him exactly because he holds these beliefs. If he’s confirmed, Judge Kavanaugh’s views on this issue could affect the outcome of any potential Supreme Court cases that may arise from the ongoing special counsel investigation.”
Republicans have countered by noting that Kavanaugh’s comments on his experience in the independent counsel’s office are a separate topic from his views on Mueller’s investigation, given that the statute governing Starr’s appointment expired in 1999 and the current investigation of Trump is being conducted under separate Justice Department regulations. Prominent Democrats have also criticized the now-expired independent counsel statute, the GOP points out, and Kavanaugh has written about a constitutionally sound framework for a special counsel that envisions presidential appointment and Senate confirmation for the position.
The White House did not immediately respond to a request for comment on the newly resurfaced Kavanaugh recording.