Supreme Court Justice nominee Brett Kavanaugh, while working on the independent counsel investigation into President Bill Clinton in 1995, argued that a sitting president would likely have to testify before a grand jury if subpoenaed.
Kavanaugh, who worked for independent counsel Ken Starr at the time, asked in a memo whether “there could be some kind of argument based on the ‘dignity of the Presidency’ and/or separation of powers” protecting the disclosure of then-President Clinton and first lady Hillary Clinton’s testimonies under grand jury secrecy rules.
Kavanaugh calls that argument “weak” in the memo to Starr and other members of the independent counsel team on January 25, 1995.
“This argument seems weak, however, given the deeply rooted history and tradition of this country’s jurisprudence that the President is not above the law,” he said, later asking, “Why should the President be different than anyone else for purposes of responding to a grand jury subpoena ad testificandum?”
Kavanaugh, currently a federal appeals judge, also contends in the memo that “once in the grand jury room, the President might claim executive privilege if asked about certain communications, but that seems a different issue altogether.”
President Donald Trump’s lawyer, Rudy Giuliani, argued in May that Trump cannot be subpoenaed as part of special counsel Robert Mueller’s investigation into Russia and the 2016 election.
“We’re pretty comfortable that in the circumstances of this case, they wouldn’t be able to subpoena him personally,” Giuliani told Fox News’ “Fox and Friends.” “They could probably require documents to be produced. That’s what was required of (President Richard) Nixon. We’ve provided 1.4 million documents. They probably could require you to testify in a civil case, possibly even as a witness in a criminal case, but they can’t require you to testify in what would be your own case because, after all, it’s all about a possible impeachment. Impeachment has to come before indictment.”
In another memo in 1998, Kavanaugh wrote to the other attorneys working for Starr to say he was “opposed to any indictments before the Senate proceedings are concluded,” a reference to impeachment proceedings against Clinton. Kavanaugh added, “I gather that is not a controversial observation.”
He wrote in that memo that he thought after the Senate proceedings concluded, “I would send a letter to the Attorney General that we believe an indictment should not be pursued while the President is in Office,” adding that “the next President can decide what to do.”
The Kavanaugh memos were included in thousands of pages of documents from the time he worked for Starr that were released by the National Archives on Friday.
Kavanaugh’s Supreme Court confirmation hearing is scheduled to begin September 4.