Memo shows Kavanaugh resisted indicting a sitting president

Kavanaugh’s appearance will be followed by testimony from legal experts and people who know the judge. (File photo: United States Court of Appeals)

WASHINGTON — Newly released documents from Supreme Court nominee Brett Kavanaugh’s time on the Kenneth Starr team investigating Bill Clinton reveal his resistance to issuing an indictment of a sitting president.

The memo, tucked toward the end of nearly 10,000 pages released Friday, provides greater insight into Kavanaugh’s views on executive power that are expected to feature prominently in his Senate confirmation hearings. Democrats have warned that Kavanaugh may be unwilling to protect special counsel Robert Mueller’s investigation into possible co-ordination between President Donald Trump’s 2016 campaign and Russia.

The documents show that on Christmas Eve 1998, Kavanaugh drafted an “Overall Plan” to colleagues providing his thoughts on bringing the independent counsel office’s work to a close and suggesting they inform the attorney general that the findings against Clinton be left to the next president.

“We believe an indictment should not be pursued while the President is in Office,” Kavanaugh wrote.

Sen. Chuck Grassley, the Republican chairman of the Judiciary Committee, announced Friday that confirmation hearings for Kavanaugh would begin the day after Labor Day. Senate Majority Leader Mitch McConnell said he hopes to have Trump’s nominee confirmed to replace retired Justice Anthony Kennedy before the new court session begins Oct. 1.

“We’re moving right along,” McConnell said during a radio interview in Kentucky ahead of the announcement. “He’ll get confirmed. It won’t be a landslide, but he’ll get confirmed.”

The Judiciary Committee will hold up to four days of review, with Kavanaugh to begin facing questions on Day 2, Sept. 5, said committee chairman Sen. Chuck Grassley. Kavanaugh’s appearance will be followed by testimony from legal experts and people who know the judge.

The White House, which is determined to have Kavanaugh confirmed before the November elections as Republicans aim to deliver on Trump’s priorities, applauded the schedule announcement. But Democrats want access to more documents from Kavanaugh’s past as a judge and as an official in the George W. Bush administration.

Grassley, R-Iowa, said there’s “plenty of time” to review documents but now it’s time for Americans “to hear directly” from Kavanaugh.

So far, the committee has made public Kavanaugh’s 17,000-page questionnaire and his more than 300 court cases as an appellate judge. The panel has additionally received 174,000 pages from his work for Bush in the White House counsel’s office.

The new documents Friday provide a glimpse into Kavanaugh’s years on the Starr team shuttling back and forth to Little Rock for “investigative purposes.” He co-wrote a detailed, nearly 300-page memo on deputy White House counsel Vince Foster’s suicide.

Hundreds of pages in the Starr files are grand jury proceedings that are redacted. Meanwhile, most of the White House records related to Kavanaugh are being held on a “committee confidential” basis, with just 5,700 pages from his White House years released this week to the public.

Democrats say the Republicans are relying on the cherry-picked files being released primarily by Bush’s lawyer, Bill Burck, who is compiling and vetting the documents, rather than the traditional process conducted by the National Archives and Records Administration.

The Archives has said its review of some 1 million pages of Kavanaugh records the committee requested will not be fully available until the end of October. The Archives produced the Starr files.

The top Democrat on the Judiciary Committee, Sen. Dianne Feinstein of California, said scheduling the hearing before the documents are ready “is not only unprecedented but a new low in Republican efforts to stack the courts.”

She said, “It’s clear that Republicans want to speed this nomination through before we know who Brett Kavanaugh is.”

Nan Aron, president of the Alliance for Justice, called it “jaw-dropping.”

“It means that the chairman is telling the American people that this hearing is barrelling forward, no matter what, no matter how little information is available to the Senate and public or how many shortcuts the committee has to take,” she said.

The White House on Friday welcomed the news of a set date for confirmation hearings.

“With the Senate already reviewing more documents than for any other Supreme Court nominee in history, Chairman Grassley has lived up to his promise to lead an open, transparent and fair process,” said White House spokesman Raj Shah. “Judge Kavanaugh looks forward to addressing the Judiciary Committee in public hearings for the American people to view.”

Kavanaugh, 53, is a conservative who could tip the court’s balance for a generation and play a decisive role on issues like abortion access, gay marriage and executive branch oversight.

He has met privately with almost all the Republican senators and one Democrat as supporters try to build momentum for confirmation.

Because his career has largely been spent in public service, Kavanaugh has an unusually voluminous paper trail. Democrats are particularly pushing for access to his three years as staff secretary for Bush, but Republicans are not including those documents in the review.

GOP Sen. Orrin Hatch of Utah said they are conducting the “most thorough vetting process for a nominee in the history of the Supreme Court.”

Edwin Meese, the former attorney general to President Ronald Reagan, said, “Democratic senators have the time and they have the material. They have no excuse to obstruct his prompt confirmation.”