Kavanaugh’s Supreme Court Confirmation Hearing to Start September 4

(Bloomberg) -- The Senate Judiciary Committee announced Brett Kavanaugh’s U.S. Supreme Court confirmation hearing will start Sept. 4 as documents showed he argued against indicting Bill Clinton while he was president.

Memos Kavanaugh wrote as a prosecutor working for Independent Counsel Kenneth Starr’s investigation of Clinton also suggested that he may be sympathetic to House Republicans’ demand for information about the Justice Department’s investigation of Russian efforts to influence in the 2016 election.

Judiciary Chairman Chuck Grassley said the confirmation hearing is expected to last three or four days. In a statement Friday, he contended the Senate will have "plenty of time" to review emails and other records that are being released on Kavanaugh’s prior work in President George W. Bush’s White House and for Starr.

Democrats have complained that Republicans are rushing confirmation of President Donald Trump’s second high court nominee without releasing the full set of documents needed to assess his legal views. Trump on July 9 announced his choice of Kavanaugh, a federal appeals court judge for the past 12 years, to replace Justice Anthony Kennedy, who retired.

White House spokesman Raj Shah said the Senate is "already reviewing more documents than for any other Supreme Court nominee in history." He added, "Judge Kavanaugh looks forward to addressing the Judiciary Committee in public hearings for the American people to view."

‘Mad Rush’

Senate Democrats immediately protested the plan to hold the hearing before all documents can be released.

Senate Minority Leader Chuck Schumer of New York accused Republicans of a "mad rush" to hold a hearing. "What are they hiding?" he said in a statement. "They seem to be more frightened of this nominee’s record and history than any we’ve ever considered."

A batch of documents on Kavanaugh’s work for Starr was released Friday, and they shed light on issues that could be relevant to special counsel Robert Mueller’s investigation into possible collusion between Trump’s campaign and Russia in 2016.

In a 1998 Christmas Eve memo, Kavanaugh argued to fellow attorneys that the independent counsel should wait until after Clinton’s Senate impeachment trial and then announce the conclusion that the president can’t be indicted in office.

"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," Kavanaugh wrote. "Rather I would explain that we believe that the next president (and attorney general) should make the decisions whether to indict Mr. Clinton."

House GOP Demands

Kavanaugh had also expressed the view that a sitting president can’t be indicted while on a panel at Georgetown Law School in 1998. In a law review article that year, he said the Constitution “seems to dictate” that “criminal prosecution can occur only after the president has left office."

In addition, legal advice that Kavanaugh gave Starr in 1994 suggests that as a justice he may sympathize with demands by House Republicans for documents from the Justice Department’s investigation of Russian election meddling. A dispute with Deputy Attorney General Rod Rosenstein over whether the Justice Department has complied with subpoenas has led some conservatives to seek a House vote on impeaching Rosenstein, a move Speaker Paul Ryan says he opposes.

In 1994 Kavanaugh, then an associate independent counsel, was examining legal issues around a potential Senate Banking Committee subpoena for complete transcripts of interviews Clinton and First Lady Hillary Rodham Clinton had given to prosecutors investigating the 1993 suicide of deputy White House Counsel Vince Foster and the Clintons’ involvement in an Arkansas land deal known as Whitewater.

Kavanaugh advised that if the Senate subpoenaed the full Clinton interview transcripts, Starr wouldn’t prevail if he tried to invoke grand jury secrecy to protect against disclosure even though the questioning took place in lieu of having the Clintons testify before a grand jury.

“If I were a judge, I would rule against us on the issue,’’ Kavanaugh wrote in a Dec. 12, 1994, memo to another lawyer in the office. “More important, I think we would lose before the Supreme Court.’’

The high court’s reliance on the “precise language of statutes and rules’’ would “bode ill for us’’ in a legal fight with the Senate, Kavanaugh said. “It is quite hard to understand how a witness interview that occurs outside the grand jury can plausibly be considered a ‘matter occurring before the grand jury,’’’ he wrote, quoting the rule on grand jury secrecy.

‘Longstanding Tradition’

To be sure, in a draft letter to Senate special Whitewater Committee Chairman Alfonse D’Amato, a New York Republican, Kavanaugh cited Justice Department policy that it doesn’t share documents from ongoing investigations with Congress. That “longstanding tradition’’ is “rooted in principles of executive privilege’’ dating back to George Washington, he wrote.

The Whitewater committee had already received parts of the transcripts that focused on Foster’s death, according to a Jan. 25, 1995, memo by Kavanaugh. But Starr’s predecessor, Independent Counsel Robert Fiske, had withheld portions of the June 12, 1994, interviews that dealt with other issues, including matters involving a failed savings and loan.

Kavanaugh said he didn’t understand “why Congress would want to obtain the transcripts’’ because Starr was “pursuing active, ongoing investigations’’ about the handling of documents in Foster’s office following his suicide and White House contacts with Treasury officials about the S&L investigation.

Kavanaugh rejected as “especially dubious’’ a possible argument that the demands for presidential security made the White House interview “equivalent of grand jury testimony.’’

To contact the reporters on this story: James Rowley in Washington at jarowley@bloomberg.net;Erik Wasson in Washington at ewasson@bloomberg.net

To contact the editors responsible for this story: Joe Sobczyk at jsobczyk@bloomberg.net, Laurie Asséo

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