Kavanaugh’s Credibility Chasm

U.S. President Donald Trump introduces U.S. Circuit Judge Brett M. Kavanaugh  as his nominee to the U.S. Supreme Court.

Amid a crisis in Judge Brett Kavanaugh’s Supreme Court nomination process, new reports suggest that President Trump’s nominee may have been personally involved in a public relations effort to shift blame for sexual assault allegations made against him onto another specific individual with unsubstantiated speculation from an ally. This alone would demonstrate a deep breach of integrity and credibility and would be disqualifying in itself for a position on the highest court in the land. Unfortunately, it also aligns with an entire career using dishonest tactics and statements to advance his personal ambition.

In Judge Brett Kavanaugh’s first words on the national stage as a Supreme Court nominee, he made two plainly false statements in quick succession. In a vacuum, they might be dismissed as overly effusive pleasantries; in fact, they were part of a decades-long pattern of defaulting toward deception whenever useful.

“Mr. President, thank you. Throughout this process, I’ve witnessed firsthand your appreciation for the vital role of the American judiciary,” Kavanaugh stated. This immediately stood as a refutation of Trump’s previous nominee Neil Gorsuch, who had in fact condemned Trump’s well-known, ruthless attacks on the judiciary, reportedly leaving Trump outraged. Kavanaugh was making clear there that he would offer no such dissent. In fact, Kavanaugh later refused to echo Gorsuch’s criticism of Trump in his own hearing.

Later in his initial statement, Kavanaugh said, “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.” Again, this claim is ridiculous on its face and is reminiscent of early Trump Cabinet meetings where attendees would heap superlative praise upon Trump. But it also spoke to a deeper deception: In fact, Trump had explicitly promised to choose his nominee off of a pre-approved list from conservative advocacy groups, a list to which Kavanaugh’s name had mysteriously been added just months before.

More generally, though, Kavanaugh’s statement shows he opts to say what is best in the moment in order to advance his career. This is even if those statements were objectively—even obviously—misleading. However, this is no new tactic for Kavanaugh. As shown below, this has been a hallmark of his entire career.

Leaking information for Ken Starr

In conducting an independent investigation of President Bill Clinton, Ken Starr’s team often leaked confidential grand jury info and decision-making on criminal issues to select reporters. These leaks were challenged by the president’s attorney David Kendall, who claimed they were illegal attempts “to pressure, manipulate, and intimidate witnesses … and cause political harm to the President.” Of course, Ken Starr and his team denied these allegations.

However, Dan Moldea, an investigative journalist who was in contact with Starr’s top deputies, has them on the record offering to leak information. Here, Kavanaugh was named as their designated leaker. Kavanaugh’s apparent readiness and willingness to leak this information raises serious concerns about his commitment to upholding the law as opposed to misusing it to advance a political and personal agenda.

Accessing stolen documents

In 2002, when Kavanaugh was working in the White House Counsel’s office on judicial nominations, Manuel Miranda, a Republican Senate staffer with whom Kavanaugh worked closely, stole thousands of research and strategy documents from Democratic staffers. In Kavanaugh’s 2004 and 2006 confirmation hearings for the U.S. Court of Appeals for the District of Columbia Circuit, he denied under oath the he had “ever come across memos from internal files of any Democratic members.” He testified that he never saw any files that “appeared to … have been drafted or prepared by Democratic staff.”

However, newly released documents reveal that Kavanaugh had in fact seen the files which were clearly labeled “not [for] distribution” and even one that had the subject line “spying.” Kavanaugh compounded the original duplicity by lying to senators twice about seeing the documents and then trying to mislead them when confronted with the truth at his most recent hearings. An exhaustive Washington Post fact-checking review found Kavanaugh’s claims to “defy logic” and to be “not accurate.” Again, the political cause and his personal ambitions trumped honesty and integrity.

Warrantless wiretapping

In 2006, Kavanaugh claimed he knew “nothing at all” about President George W. Bush’s warrantless wiretapping program following 9/11. Yet, an email sent by Kavanaugh from September 17, 2001, indicates that he was at least involved in the initial conversation about the “implications of random/constant surveillance of phone and e-mail conversations of non-citizens who are in the United States when the purpose of the surveillance is to prevent terrorist/criminal violence?” As a senior staffer in the Bush White House, Kavanaugh was at least present for high-level policy discussions, despite the insistence of Senate Republicans that he was merely a “paper pusher.” While extremely controversial, Kavanaugh could easily have simply been honest about his level of involvement, but instead he may have determined that a definitively false blanket denial would better serve his career.

Torture

At the same 2006 hearing, Kavanaugh told Sen. Dick Durbin (D-IL) under oath, “I was not involved and am not involved in the questions about the rules governing detention of combatants.” However, Kavanaugh now admits that there were at least three instances of his participation in Bush’s detainee policy, including discussions on access to counsel for detainees; conversations about detained U.S. combatants; and crafting President Bush’s 2005 signing statement on the McCain torture amendment banning the torture of detainees. Kavanaugh persistently attempted to mislead the senators on the committee about the role he played in numerous Bush administration policies. Again, Kavanaugh’s blanket denial may have served him well as a means to get through the confirmation hearing at the time. However, we now know his statements were false.

Judicial nominations

Kavanaugh also misled senators on his role in the nominations of particularly controversial lower court judges. In 2004, when asked about his support for William Pryor’s nomination to the 11th U.S. Circuit Court of Appeals, Kavanaugh responded, “That was not one that I worked on personally.” In 2006, he again tried to downplay his involvement in the nomination of contentious judicial nominee Charles Pickering, saying, “This was not one of the judicial nominees that I was primarily handling.”

Newly released emails and documents suggest that Kavanaugh was heavily involved in selecting and vetting both Pryor and Pickering. Kavanaugh repeatedly lied under oath in order to distance himself from particularly controversial issues that could provide a more full understanding of his judicial ideology. The fact that he lied about his role in promoting a hard-line political agenda on the courts now disturbingly echoes his own confirmation process.

Sexual harassment allegations against Judge Alex Kozinski

In the early 1990s, Kavanaugh clerked for then-Judge Alex Kozinski and maintained a close relationship with him thereafter; Kozinski even introduced Kavanaugh to the Senate Judiciary Committee for his hearing in 2006. The now-disgraced Kozinski retired in December 2017 after multiple allegations of sexual misconduct by former law clerks. One such practice was maintaining the “Easy Rider Gag List,” an email list to which Kozinski frequently sent sexually explicit jokes. In response to a written question for the record—“Has Judge Kozinski ever made comments about sexual matters to you, either in jest or otherwise?”—Kavanaugh wrote, “I do not remember any such comments.”

But, as one former clerk claims, “[H]aving clerked in his chambers, I do not know how it would be possible to forget something as pervasive as Kozinski’s famously sexual sense of humor or his gag list, as Kavanaugh has professed to in his hearings.” Kavanaugh’s inability, or perhaps refusal, to acknowledge a practice that was so infamously widespread and offensive is questionable at best. At worst, it raises questions of what sorts of breaches of integrity Kavanaugh was willing to tolerate in order to find another stepping stone in his career.

Roe v. Wade

When asked by Sen. Richard Blumenthal (D-CT) about his opinion on the constitutionality of Roe v. Wade, Kavanaugh claimed he would follow precedent and that Roe is “an important precedent of the Supreme Court that has been reaffirmed many times.” This was an apparent attempt to depict himself as someone who would support women’s rights and abstain from overturning precedent. Sen. Susan Collins (R-ME) also used Kavanaugh’s affirmation that Roe is “settled law” as justification to vote for him.

However, an email written by Kavanaugh from March 2003 recently surfaced that calls this response into question, suggesting that he does not believe Roe is “settled”—or that the phrase has any particular meaning at all. The email reads, “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since the Court can always overrule its precedent, and three current Justices on the Court would do so.” One might argue that Kavanaugh’s leaked email is accurate because settled law can always be overturned, but that would make his statements during the confirmation process emphasizing that Roe is settled law all the more dishonest.

Presidential power

Confronted with grave concerns on his expansive views of president immunity under the law, Kavanaugh said, “I’ve never taken a position on the constitutionality of indicting or investigating a sitting president.” Kavanaugh repeated the same talking point when pressed on the issue by several different senators.

However, in 1998, Kavanaugh wrote in The Georgetown Law Journal that “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 a 1999 opinion piece, he wrote that “the Constitution … appears to preclude indictment of a sitting president….” In a 2009 Minnesota Law Review article, Kavanaugh took a similarly strong stance, saying, “The point [of deferral of prosecution] is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of out of office. … I think this temporary deferral also should excuse the President from depositions or questioning in civil litigation or criminal investigations.” Kavanaugh, despite the statements in his hearing, quite obviously has taken a position on the constitutionality of criminally investigating a sitting president.

This is amongst the most consequential of Kavanaugh’s deceptions and one of the most pivotal to sustaining the possibility of his confirmation to a lifetime appointment on the highest court in the land. Kavanaugh is a savvy enough political operator to know why Trump picked him for the Supreme Court—despite his flaws.

Conclusion

Kavanaugh began his career as a political operative willing to use whatever deceptive means necessary—from leaking in the special counsel’s office to dealing with stolen documents in court fights while in the White House. Worse than that, though, when he attempted to transition into a career in the judicial branch, he neither changed his ways nor owned up to his past behavior. Instead, he repeatedly misled the Senate about his prior deceptions, from one confirmation hearing to the next.

Kavanaugh may have rightly believed that, with the Senate controlled by other partisan Republicans, lying and misconstruing facts regarding his record would have no consequence. Indeed, Senate Republicans have blocked any review of the vast majority of his record, so this list of false and misleading statements represents only a small portion of the total. But, as his Supreme Court confirmation process comes to a head—hinging precisely on whether his denials of credible accusations against him should be believed—Kavanaugh’s record of almost casual deception has caught up with him. The American people simply have no reason to believe him.

Jake Faleschini is director of Federal Courts Programs at the Center for American Progress. Jesse Lee is senior adviser for Communications at the Center. The authors would like to thank Devon Schmidt for his assistance with this piece.