Sunday, July 22, 2018

Point of Personal Privilege: Politico Pens a Hit Piece on Kavanaugh

Not surprisingly, Politico's Josh Gerstein has authored a hit piece on Supreme Court nominee Brett Kavanaugh, with the catchy title "'Brett Was Involved': Inside Supreme Court nominee's work for Bill Clinton."  In fact, the article tells very little about the breadth of Kavanaugh's work for the OIC, instead focusing on unsupported suggestions from partisan journalists (and Clinton sycophants) Jonathan Alter and Steve Brill that Kavanaugh (while working for Starr) may have violated Federal Rule of Criminal Procedure 6(e), which prohibits unauthorized disclosure of grand jury materials. That Gerstein would write such a piece of hack work is not surprising, given his history of shaping stories and quotes to fit a pre-conceived ideological spin.

A case in point is this May 2017 Gerstein hatchet job on Rod Rosenstein's three page memo--the memo used by the Trump Administration to justify the Jim Comey firing. (The May 2017 Gerstein piece was written before Rosenstein became the darling of the Morning Joe crowd by appointing Robert Mueller as Special Counsel.) Literally every person quoted in the May 2017 Gerstein article criticized Rosenstein's memo. No one defended it. Yet Gerstein had called me while he was working on the story and we spoke at length. I vigorously defended the reasoning and propriety of Rosenstein's memo, as well as Comey's firing. But you won't find any of those quotes in Gerstein's story. I'm confident that I was not the only source who defended Rosenstein's memo, the reasoning of which was vindicated by DOJ Inspector General Michael Horowitz's subsequent Report. As I pointed out here, four days after Gerstein's piece on Rosenstein, "legions of current and former DOJ prosecutors and FBI Special Agents" were appalled at Comey's public statements during the 2016 election. But Gerstein couldn't seem to locate or quote any of them.

With respect to the Alter-Brill suggestion/insinuation that Kavanaugh leaked grand jury information (and the typical call for a "thorough investigation"), it is pure, unadulterated hogwash. First, although Starr's OIC (where I served as Deputy Independent Counsel) was regularly accused of leaking grand jury information, a Special Master's investigation ordered by U.S. District Judge Norma Holloway Johnson, no fan of our office, cleared the OIC (and by implication all of our employees) of those charges. More importantly, to my knowledge, Kavanaugh himself was never in any way pegged as one of the supposed grand jury leakers. Kavanaugh did occasionally meet with members of the media, as he has always acknowledged, but there is nothing wrong with that per se. Special Prosecutor Archibald Cox regularly gave briefings on background to members of the press and both Cox and Special Prosecutor Leon Jaworski employed a press officer, Jim Doyle, who did the same. It was part of his job. Nobody has ever credibly suggested that Cox, Jaworski, or Doyle acted improperly in giving background briefings on non-privileged matters to the press. In addition, Kavanaugh, when running the Vince Foster investigation, apparently met with certain media figures who claimed to have evidence and information to impart about Foster's death. Kavanaugh would have been remiss in his duties, and accused of a cover-up, had he refused to meet with such sources.

So what is the evidence offered by Brill and Alter that Kavanaugh leaked grand jury information?  According to Brill, “If what he did was not improper, why didn’t he do it on the record? The point is they all knew it violated rule 6(e). Brett was involved.” Really and truly, this is what Brill told Politico--this is his proof. Did Brill talk to Politico from a padded room? Keep in mind that Rule 6(e) violations are a crime. Where is your evidence, Mr. Brill? Put up or shut up.

What is Mr. Alter's proof? “Twenty years ago, I had indications that Kavanaugh was in contact with reporters and because it involves potential violation of federal law, those contacts need to be thoroughly explored in the confirmation process." Is an "indication" anything like a penumbra? Alter had "indications" 20 years ago that Kavanaugh had contact with reporters. Why does contact with reporters involve a potential violation of federal law? After all, it is a potential violation of federal law every time I file a tax return or fill out a government form. What is your proof, Mr. Alter? What precise "indication" did you have that anything Kavanaugh may have said or done constituted a violation of federal law or was improper in any way? Put up or shut up. 

There are other problems with Gerstein's hit piece. For example, he writes that "Starr infamously took an expansive view of permissible contact with the media, allowing discussions about issues related to the ongoing investigation — disclosures that other prosecutors view as improper or ill-advised." How about some details Mr. Gerstein? What exactly are you talking about? Starr's position that prosecutors were allowed to publicly comment on the investigation in order to rebut false accusations by investigatory targets was part of the U.S. Attorney's manual at the time and had been endorsed in the past by then Deputy Attorney General Eric Holder. Starr's view of what constitutes 6(e) material was later confirmed by the U.S. Court of Appeals for the D.C. Circuit in a 1999 opinion (In Re Sealed Case).

Of course, it is perfectly proper to question Judge Kavanaugh on this topic, and his detailed response to the Senate Judiciary Committee's questionnaire already touches upon his contacts over the years with members of the press. The Senate is free to have at it. But these particular accusations are a joke, and Gerstein's attempt to turn them into a news story is absurd. Politico should be embarrassed.

(wisenberg)

 

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