President Donald Trump has waged war on leakers — but in nominating Brett Kavanaugh for the Supreme Court, the president has picked someone well-versed in the swampy art of off-the-record briefings and anonymous quotes.

Kavanaugh spent nearly four years working for Kenneth Starr’s independent counsel probe of President Bill Clinton two decades ago. A sampling of the Starr office’s internal files available at the National Archives indicate Kavanaugh helped craft aspects of Starr’s communications strategy and interacted directly with the news media himself.


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.

While Starr had spokespeople, “he also had attorneys like Kavanaugh contact people who might have information to come to the office and offer to guide the press about the work of the office,” said former Iran-Contra prosecutor John Barrett, now a law professor at St. John’s University.

Writer and businessman Steven Brill, who set off a firestorm in 1998 with a cover story in his magazine, Brill’s Content, on Starr’s alleged leaks to the press, said Kavanaugh needs to offer a more detailed account of his interactions with reporters during the Whitewater probe.

“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),” Brill said, referring to a federal court rule protecting grand jury secrets. “Brett was involved.”

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The questionnaire Kavanaugh submitted to the Senate Judiciary Committee on Friday acknowledges his exchanges with the media during his time on Starr’s staff. The submission also appears to acknowledge that he has sometimes spoken to reporters on a not-for-attribution basis.

In the questionnaire, Kavanaugh notes interviews for seven books — six of which focused at least in part on the independent counsel probe.

“In addition to the interviews listed above, I have also spoken to reporters on background as appropriate or as directed,” the nominee adds.

The judge also notes that he helped Starr prepare his own memoir.

Kavanaugh’s allies said his exchanges with the media were innocuous and shouldn’t be described as leaks — and reiterated that the young attorney, who went to Starr’s office from a clerkship with Justice Anthony Kennedy, was acting at the request of his boss.

“He was assigned by Starr to talk to the press in several areas, including to explain legal issues,” said one person who is close to Kavanaugh and spoke on condition of anonymity. “That was authorized and at Starr’s request to deal with the media on those issues so they could have the office’s perspective. ... This was not someone leaking. This was someone asked by his boss as part of a strategic approach dealing with the arguments they were making in court going on background or off the record to talk through various things.”

Former Newsweek media critic Jonathan Alter resurfaced the issue after Kavanaugh’s nomination to succeed Kennedy, who announced his retirement last month. Alter initially accused Kavanaugh of having “routinely skirted or violated” grand jury secrecy rules while on Starr’s staff — though Alter later said he shouldn’t have said it was routine.

“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,” Alter told POLITICO.

Starr did not respond to requests for comment for this story, but other veterans of his office defended Kavanaugh’s contacts with reporters.

“My sense then as it is now was that it was not about leaking, but about intelligence gathering,” said former Starr probe attorney Paul Rosenzweig, now with the conservative R Street Institute think tank.

He added that Kavanaugh needed to have some degree of engagement with the press because his primary assignment at the outset of his tenure was to re-investigate the death of White House lawyer Vincent Foster.

The apparent suicide spawned a slew of conspiracy theories, largely propagated by right-wing media outlets and commentators — some obscure and some well-known, including talk show powerhouse Rush Limbaugh. “Ken’s view was that he needed to reopen [the Foster probe] and chase down every lead,” Rosenzweig added. “Many of us thought it was overkill and kind of unnecessary, but if you’re actually going to put conspiracy theorists to rest you sort of have to take them seriously.”

Trump has railed against the publication of information concerning special prosecutor Robert Mueller’s investigation of the Trump campaign’s involvement with Russian operatives seeking to interfere with the 2016 election. The president has also fulminated against anonymously sourced stories about infighting within his administration, recently undertaking a housecleaning effort aimed at ridding his staff of supposed leakers.

More details about Kavanaugh’s role are expected to emerge in the coming weeks as an estimated 20,000 pages of Kavanaugh’s records from his time on Starr’s staff are processed for public release as part of the lead-up to his confirmation hearings.

Senate Democrats are pressing for disclosure of those records to develop a clearer picture of Kavanaugh’s work for Starr. California Democratic Sen. Dianne Feinstein, ranking member on the Senate Judiciary Committee, said on Wednesday that she expects to see “at least 1 million pages of documents from his tenure in the White House and as a political operative.”

“Fully understanding Mr. Kavanaugh’s role on the Ken Starr investigation and as a political operative is critical for senators to evaluate his judgment and views on potential issues that could come before him on the court,” said one Democratic Senate aide. “Given the current Mueller investigation, his statements about presidential accountability and allegations that Mr. Kavanaugh leaked sensitive investigative information to the press, clearly, there are significant questions about his commitment to upholding law enforcement standards.”

Kavanaugh’s questionnaires for his appeals court nomination a decade ago say that among the topics on which he offered legal advice during his time in Starr’s office was analyzing the office’s “Rule 6(e) obligations” — legal jargon for determining what is and is not covered by grand jury secrecy. He acknowledged that work again in the questionnaire submitted Friday for his Supreme Court nomination.

Other documents from and about Kavanaugh are already public in the files of other Starr aides. They show Kavanaugh’s involvement in strategizing how to rebut media criticism of the Foster investigation.

Clinton’s personal attorney David Kendall began complaining publicly about alleged leaks of grand jury information in June 1997, while Kavanaugh was working for Starr. But Kavanaugh transitioned out of the office in November, just before the Monica Lewinsky sex scandal broke — prompting Kendall to escalate his complaints by taking them to a federal judge in Washington.

In February 1998, Starr’s office filed 96 declarations from staff members denying any involvement in Lewinsky-related leaks. “With today’s filing, everyone in the Office of Special Counsel, is on record denying, under penalty of perjury, responsibility for disclosing to the news media any of the [grand jury] material,” Starr deputy Robert Bittman wrote.

The sheaf of signed denials includes several prominent lawyers, including current Deputy Attorney General Rod Rosenstein, who was on Starr’s staff at the time. Rosenstein completed the declaration denying his involvement even though he also left the office in October, several months before the Lewinsky story broke and the related Kendall complaint rolled in.

Kavanaugh, who had left the office at that point but later would return, was not among the Starr lawyers and investigators who filed declarations under penalty of perjury in February 1998, but a person close to Kavanaugh said Wednesday that Kavanaugh believes he completed at least one declaration during his tenure confirming that he was not a source for leaks that were fought over in court during the Starr proceedings.

Kavanaugh returned to Starr’s staff in April 1998 and wrote much of the office’s report to Congress that led to Clinton’s impeachment. Accounts of Kavanaugh’s jousting with others in the office about the contents of that report appear in books by The Washington Post’s Bob Woodward and Duquesne University president Ken Gormley. Kavanaugh left Starr’s staff for good in December 1998, about two months after the report was sent to the House.

Much of the leak litigation bogged down in disputes over precisely what information is covered by grand jury secrecy. In 1999, the D.C. Circuit Court of Appeals issued a narrow definition that deemed many of the alleged disclosures by Starr’s office not to be breaches of court rules. However, the court noted that disclosures not determined to breach grand jury secrecy may be “prohibited by other Rules or ethical guidelines.”

Despite that ruling, one Starr aide, spokesman Charles Bakaly, was subsequently ordered to stand trial on a criminal contempt charge concerning a 1999 New York Times story on the possibility of a presidential indictment. U.S. District Court Judge Norma Holloway Johnson ultimately acquitted Bakaly of lying to the court but made clear her ire over the Starr office’s conduct and its interactions with the media.

The perception that the Starr operation was a gushing font of leaks helped fuel bipartisan dissatisfaction with the statute governing independent counsel investigations and contributed to its expiration in 1999. Regulations the Clinton administration put in place to replace the law reflect that criticism by stressing the need for special prosecutors to go by the book.

“A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice,” say the rules under which Mueller was appointed last May. “He or she shall consult with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department, including ethics and security regulations and procedures.”

In jousting over the alleged leaks, Starr pointed to public statements by officials like then-Deputy Attorney General Eric Holder, seeming to bless greater transparency “in cases involving well-known people.”

Most controversially, Starr contended that inaccurate statements about his office justified making statements that would otherwise be against Justice Department rules that limit such comments about ongoing investigations.

“That would be true except in case of a situation where what we are doing is countering misinformation that is being spread about our investigation in order to discredit our office and our dedicated career prosecutors,” Starr told Brill in 1998. “I think it is our obligation to counter that kind of misinformation. ... And it is our obligation to engender public confidence in the work of this office.”

Kavanaugh seemed to take a narrower view in a law review article he wrote during his hiatus from Starr’s office. He proposed ditching independent counsel law provisions allowing a public report and instead urged permitting only a “classified” report to Congress. “The ordinary rules of prosecutorial secrecy should apply to evidence gathered during an independent counsel investigation,” Kavanaugh wrote.

Rosenstein has taken a similar stance regarding the Mueller probe. He’s condemned former FBI Director James Comey’s public comments on the Hillary Clinton email investigation and insisted that the Justice Department limit public comments about Mueller’s investigation.

“We do not try cases on television or in congressional hearings,” Rosenstein said earlier this month. “We follow the rule of law, which means that we follow procedures, and we reserve judgment.”

Mark Tuohey, who supervised Kavanaugh early in the Starr investigation, said that view also prevailed early in the Whitewater probe but seemed to fall by the wayside as the time went on. “If there was one rule during that year it was: This was not a case we were developing in the press,” Tuohey said. “What happened thereafter, I don’t know.”

Tuohey said he thinks that as time wore on Starr’s office got too involved in responding to attacks in the media, but he doesn’t consider Kavanaugh to blame.

“I’ve always felt strongly that prosecutors dealing with confidential grand jury info and decision-making about criminal matters ought not to be talking to the press about this stuff,” Tuohey said. “I know things got out of hand a bit later on. ... but I certainly wouldn’t put any of that in Brett Kavanaugh’s lap. He handled himself very professionally.”

