Patterico's Pontifications

5/13/2006

David Savage Propagandizes Against Brett Kavanaugh

Filed under: Dog Trainer,Judiciary — Patterico @ 2:54 pm

i just ran across this David Savage article about Brett Kavanaugh from last Tuesday. As you no doubt have already guessed, it is propaganda through and through, beginning with the headline:

Starr Aide’s Nomination Divisive

You know the drill by now: in the world of Big Media, the word “divisive” is saved only for those people or issues that are divisive and right-leaning. Divisive people or issues that are left-leaning are rarely if ever described as “divisive.” Rather, they are falsely described as more centrist than they actually are. Hillary Clinton is one prominent example.

This characterization plays right in to the hands of Democrats like Chuckie Schumer. From the article:

In hearings after Kavanaugh was first nominated, Democrats and liberal activists complained that his record was one of a political warrior, not of a seasoned judge. “If President Bush truly wanted to unite us, not divide us, this would be the last nomination he would send to the Senate,” said Sen. Charles E. Schumer (D-N.Y.).

So: the White House says Kavanaugh is qualified. Schumer says Kavanaugh is divisive. And the headline in the L.A. Times? “Starr Aide’s Nomination Divisive.” Does it sound like the editors of The Times are siding with Democrats? You tell me.

The Savage article falsely claims that Kavanaugh’s views on executive power are cynically dependent upon politics:

As a young lawyer in the mid-1990s, Brett M. Kavanaugh spent several years working on Kenneth W. Starr’s investigation of President Clinton.

In that role, he argued that the White House must open itself and its records — including notes taken by Clinton’s attorneys — for examination by the independent counsel and his deputies. But as an advisor to President Bush, Kavanaugh has taken the opposite view, zealously defending presidential prerogatives.

I am aware of no contradiction between Kavanaugh’s former and current views. Working for Starr, he argued that the president must disclose information during a federal criminal investigation before a grand jury. Working for Bush, he has argued that the president may withhold confidential information in the context of civil suits.

There is no contradiction there. That is the law. The courts have made this clear. And David Savage persists in misunderstanding this.

The information Kavanaugh sought to keep confidential while working for Bush was information demanded in the context of civil suits:

As a deputy White House counsel, [Kavanaugh] argued that the president and the White House should be shielded from outside inquiries, such as the ultimately unsuccessful lawsuits from environmentalists and congressional auditors who wanted to know whether oil industry officials had met with Vice President Dick Cheney to draft the administration’s energy policy.

These lawsuits were civil in nature, and they were (as Savage notes in passing) unsuccessful. The Supreme Court slapped down the environmentalists who wanted the names of oil industry officials. The vote was 7-2.

Meanwhile, when Starr sought documents from Clinton, it was in the context of a criminal investigation. And, for that very reason, he won. As the court said in the Eighth Circuit decision ruling for Starr:

Even if we were to conclude that the governmental attorney-client privilege ordinarily applies in civil litigation pitting the federal government against private parties, a question that we need not and do not decide, we believe the criminal context of the instant case, in which an entity of the federal government seeks to withhold information from a federal criminal investigation, presents a rather different issue.

The key distinction is that executive privilege (and government attorney-client privileges) often must bend during a criminal investigation.

Ironically, Savage has misrepresented that Eighth Circuit decision before. In July of last year, Savage wrote an article ridiculing the White House’s invocation of government attorney-client privilege to withhold memos written by Supreme Court candidate John Roberts. Savage pointed to the Eighth Circuit decision discussed above, in which Starr prevailed in his argument that any such privilege did not pertain to the documents sought in Starr’s investigation — the same criminal investigation in which Kavanaugh participated. Savage argued last July that this case supported the Democrats’ claim that Roberts’ memos should have been disclosed. But Savage failed to tell readers the key distinction made by the Eighth Circuit decision — namely, that Starr was pursuing a criminal investigation before a grand jury.

I slammed Savage last July for failing to explain this distinction to his readers. Eugene Volokh joined in.

Now he’s doing it again.

What is interesting is that, in both the Supreme Court decision regarding secrecy of the oil industry officials in the civil context, and in the Eighth Circuit decision on disclosure of documents in the criminal context, Kavanaugh was right. He won both when he was working for Starr and when he was working for Bush.

What’s the problem, David Savage?


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