Kavanaugh misled about grand jury secrecy in Vince Foster probe
The focus on Brett Kavanaugh's actions during the Starr probe stems from his questioning of a grand jury witness about what happened in a park before Clinton White House lawyer Vince Foster was found there in what was ruled a suicide. | Brendan Smialowski/AFP/Getty Images
Feinstein: Kavanaugh misled about grand jury secrecy in Vince Foster probe
09/26/2018 05:07 AM EDT
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The top Democrat on the Senate Judiciary Committee is accusing Supreme Court nominee Brett Kavanaugh of misleading the Senate about his handling of grand jury secrets while working for Independent Counsel Kenneth Starr two decades ago.
Kavanaugh's nomination has run into trouble in the last two weeks over allegations of sexual assault by two women, but Democrats have also complained that he misled them during his Senate testimony on a number of issues, including his handling of warrantless wiretapping and detainee policy in the George W. Bush administration.
Sen. Dianne Feinstein told POLITICO that she has now identified another area in which she believes Kavanaugh was not truthful in communications with senators. She said that by directing officials to speak to reporters during the investigation of President Bill Clinton, Kavanaugh may have violated grand jury secrecy laws — even though he told her and Sen. Sheldon Whitehouse (D-R.I.) he never broke those rules.
"According to a memo from the National Archives, Brett Kavanaugh instructed Hickman Ewing, a colleague and deputy independent counsel in the Starr investigation, to ‘call [Chris] Ruddy’ about matters before a grand jury, which would be illegal to disclose," Feinstein said in a statement to POLITICO. "I asked Judge Kavanaugh in questions for the record whether he had shared ‘information learned through grand jury proceedings.’ His answer, which says that he acted ‘consistent with the law,’ conflicts with the official memo from Mr. Ewing. Disclosing grand jury information is against the law and would be troubling for any lawyer, especially one applying for a promotion to the highest court in the country.”
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Democrats have so far gotten little traction with their arguments that Kavanaugh was not upfront with senators during his testimony and in other official communication with lawmakers. But the latest instance could bolster their claims that his credibility is in question as he seeks to fight off the allegations of sexual assault.
The White House did not immediately respond to requests for comment for this story.
As with the larger controversies Kavanaugh finds himself enmeshed in, the one Feinstein identified is also sexually explicit. It stems from his questioning of grand jury witness Patrick Knowlton, as part of the Starr investigation, about a man Knowlton claimed to have seen in Fort Marcy Park not long before the body of Clinton White House lawyer Vince Foster was found there in an apparent suicide in 1993.
After being questioned by Kavanaugh in 1995 in front of a Washington grand jury re-investigating Foster's death, Knowlton complained that the young prosecutor asked him inappropriate questions suggesting Knowlton might have been in the park looking to have sex with another man.
"Did the man in the park pass you a note?" Knowlton recalled Kavanaugh asking, later followed by an even more jarring question: "Did the man in the park touch your genitals?"
Knowlton recounted his version of the questioning to Christopher Ruddy, then a reporter for the conservative Pittsburgh Tribune-Review investigating and often feeding conspiracy theories that Foster was murdered. Ruddy is now the CEO of Newsmax and a confidant of President Donald Trump. According to records at the National Archives, a couple weeks after the grand jury appearance, Ruddy reached out to Kavanaugh and left a voicemail message saying he was "worried" about what Ruddy was about to report.
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"I didn't ask him that," Kavanaugh insisted in a message to Ewing, per a memo Ewing wrote. "I did ask him about sexual advances by the other man in the park. [Fellow prosecutor] John Bates and I want you to call Ruddy — at least get him off the genitalia part. I am worried about that."
Why Kavanaugh believed the wording of the question was so critical is unclear, but Feinstein said the pushback he set in motion violated grand jury secrecy.
Ewing's memo says he contacted Ruddy and told him: "We cannot comment on any questions asked or answers given in the grand jury. It is against the law for us to do so."
However, the Starr deputy acknowledges he went on to indicate to Ruddy that the "genitals" question was never asked.
"I told him that I have been told that Knowlton was not asked the question about 'genitals,'" Ewing wrote, saying that he shared the information "off the record — deep background" with Ruddy's agreement.
Ewing did not respond to a phone message Tuesday night.
One prominent legal ethics expert, Stephen Gillers, said he considers the disclosure to Ruddy to be a breach of grand jury secrecy.
"There is no 'off the record' exception to grand jury secrecy," Gillers said. "What strikes me about Ewing's memo, including what he said Kavanaugh said, is how casually, even cavalierly they were willing to ignore Rule 6(e). Of course, this assumes Ewing is quoting Kavanaugh correctly."
Gillers, a New York University law professor, said he's baffled why Kavanaugh was so concerned about the precise language used, but that the response he set in motion violated court rules.
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"The information disclosed — that 'genitalia' was not used at the grand jury — is trivial and if that were done through a slip of the tongue, it would not be a story. But Ewing made the disclosure after getting an off the record promise and knowing that what he then told Ruddy violated the rule," the professor said. "Kavanaugh asked Ewing to get Ruddy 'off' the use of the word and that required Ewing to violate the rule as he realized."
However, a fellow lawyer on the Starr probe disputed Tuesday that either Kavanaugh or Ewing did anything wrong.
"I don't think it even comes close," said Paul Rosenzweig, now with the think tank R Street Institute. "There's lots of ways you can talk to press like you and guide you away from topics without invading grand jury secrecy."
Rosenzweig noted that legal complaints over alleged leaks from Starr's operation led to a federal appeals court ruling in 1999 that said grand jury secrecy covers only matters occurring in front of the grand jury or likely to occur there — and not issues like the general direction of the investigation or most activities undertaken by law enforcement agencies.
"What matters is what actually happens in front of the grand jury," Rosenzweig said. "If I tell you the grand jury is not investigating something, that, by definition, is not something happening in front of the grand jury."
The former Starr lawyer also noted that while Feinstein's statement says Kavanaugh "instructed" Ewing to call Ruddy, Ewing was Kavanaugh's boss.
"If you know Hick Ewing, you know no one was going to order him around, except maybe Judge Starr — and then only some of the time," Rosenzweig quipped.
Ewing's memo appears in his files as part of the broader collection of Starr investigation papers at the National Archives. Many of the Foster-related documents have been open for years and some are posted online on websites that cling to the notion that Foster was murdered. Kavanaugh's re-investigation ultimately affirmed the notion that the White House lawyer's death was a suicide.
