In 1998, Brett M. Kavanaugh was working for Kenneth Starr, the independent counsel conducting an investigation of Bill Clinton’s affair, as president, with Monica Lewinsky, a White House intern. If Kavanaugh, now a Supreme Court nominee, spilled information to reporters about that investigation, which resulted in Clinton’s impeachment, or about any of Starr’s other projects, reporters should be able to remember. If Kavanaugh never leaked privileged information, members of the press could say so. If he did, and they don’t say so, Kavanaugh will likely be placed on the court for the rest of his natural life. If he did, and reporters do say so, they are outing a source.
Did Kenneth Starr’s office leak? Without a doubt. On June 13, 1998, Starr acknowledged that he and his aides had divulged information about Clinton and Lewinsky to journalists. Starr told Steve Brill, the editor of Brill’s Content, a media watchdog magazine, that the leaks were neither illegal (because they did not refer to testimony before a grand jury) nor did they violate Justice Department policy. That claim was not exactly true. The law rules out leaks of “matters occurring before the grand jury,” but only the narrowest possible interpretation of that phrase would confine the rule to testimony in particular. According to the federal rules of criminal procedure—specifically, rule 6 (e) (2)—any “attorney for the government, or any person to whom disclosure is made . . . shall not disclose matters occurring before the grand jury, except as otherwise provided by this rule.” Leaks of information gathered by government officials, and relevant to putting a charge before a grand jury, ought to be likewise prohibited.
Reporters face a stark conflict between their professional code—don’t name your sources—and a First Amendment obligation—inform the American people about the record of a judge about to receive a lifetime appointment to the most important nine-person body in the world.
“I have talked with reporters on background on some occasions,” Starr told Brill. He named Jackie Bennett, his deputy, as someone who had “talked ‘extensively about the case’ to three reporters—Michael Isikoff of Newsweek, Susan Schmidt of The Washington Post and Jackie Judd of ABC News.” None of those reporters confirmed Starr’s statement. He did not name other leakers.
But we know now that at least one reporter received information from Kavanaugh: Dan Moldea, who published a book, A Washington Tragedy: How the Death of Vincent Foster Ignited a Political Firestorm, that April. At the time, Kavanaugh had just completed a stretch working for Starr on an investigation of the death of Vincent Foster, a White House adviser; the case was ruled a suicide. Soon after speaking with Moldea, Kavanaugh returned to Starr’s office in a formal job. During the period in between, when he was chatting with Moldea, was he serving as a cutout for Starr—not technically on the books, but privy to his work? We don’t know what information Kavanaugh shared.
In July, Kavanaugh acknowledged having “been a source for several books written about the Starr investigation.” Last week, he told Washington Post reporters Tom Hamburger, Robert Barnes, and Robert O’Harrow, Jr., “I have also spoken to reporters on background as appropriate or as directed.” Moldea told the Post that Kavanaugh “was the designated person” the Office of the Independent Counsel “puts with people like me.” As evidence, Moldea kept recordings of his conversations with Starr deputies and has played them for Judiciary Committee lawyers. According to the Post, “The recordings suggest that Starr’s top deputies referred Moldea to Kavanaugh for answers to questions about the Foster matter.”
To whom else did Kavanaugh leak? And what did he leak?
There’s no way around it. Reporters face a stark conflict between their professional code—don’t name your sources—and a First Amendment obligation—inform the American people about the record of a judge about to receive a lifetime appointment to the most important nine-person body in the world. Silence matters. So does the predictable consequence of breaking a silence. To my mind, if Kavanaugh leaked from Starr’s office and is covering that up, he is ethically disqualified to serve on the Supreme Court. Reporters owe us, and the Senate, information that helps determine who deserves a spot on the highest bench in the land.