Brett Kavanaugh Without Tears

The tough time Democrats put the justice’s family through during his confirmation hearings was nothing compared to what Kavanaugh put Vince Foster’s family through in the 1990s.

The following is adapted from Jackie Calmes’s book Dissent: The Radicalization of the Republican Party and Its Capture of the Court, published in June by Twelve, an imprint of Grand Central Publishing. Calmes, a columnist at the Los Angeles Times, previously covered Congress, the White House and presidential campaigns for the New York Times and the Wall Street Journal. 

“My family and my name have been totally and permanently destroyed, by vicious and false … accusations.” That’s what Associate Justice Brett Kavanaugh complained during his 2018 confirmation hearings for the Supreme Court. Kavanaugh was objecting to a ten-day delay before the Senate gave him the opportunity to answer what he considered partisan accusations of youthful sexual misconduct. Kavanaugh was also, of course, objecting to the allegations themselves.

But the family of Deputy White House Counsel Vince Foster, who committed suicide in July 1993, endured not ten days but three years of a politically-motivated investigation into the spurious accusation that Foster was murdered by his close friends Bill and Hillary Clinton, or by someone close to them. The purported reason for killing Foster was to silence whatever evidence he might have against the couple, including an alleged affair with the First Lady—evidence that was never found, almost certainly because it didn’t exist. The leader of the Foster investigation was an ambitious 29-year-old lawyer named Brett Kavanaugh.

Kavanaugh emerged from Yale Law School, two appellate clerkships, an internship with the Solicitor General, and a third clerkship at the Supreme Court as a deeply conservative but not especially partisan young man. That changed after the Solicitor General Kavanaugh worked for, Ken Starr, was appointed independent counsel to investigate the Clintons and an Arkansas real estate investment called Whitewater. In 1994, Starr invited Kavanaugh to join him for what he promised would be a short gig. It lasted nearly four years.

Kavanaugh spent three of those years and about $2 million chasing the Foster allegations after the U.S. Park Police, suburban Virginia police, the FBI, a senior House Republican, a bipartisan Senate panel, and Starr’s predecessor as independent counsel—a panel of judges led by a Reagan appointee replaced the first one, Robert Fiske, with the more partisan Starr—all concluded that Foster, who suffered from depression, killed himself. Foster’s widow, Lisa Foster, had no doubt. Kavanaugh didn’t much doubt it himself after he’d investigated the matter less than a year.

Foster, Bill Clinton’s friend since childhood and Hillary Clinton’s former law partner in Little Rock, had reluctantly followed the first couple to Washington. Quickly overwhelmed by the pressure and partisan attacks, he blamed himself for a series of crises that marred the Clintons’ first months. He was repeatedly mocked on the Wall Street Journal’s conservative editorial page. On the afternoon of July 20, 1993, Foster drove from the White House and across the Potomac River to Fort Marcy Park in McLean, Virginia, where he walked through the trees to a Civil War-era cannon and shot himself through the mouth with a .38-caliber handgun. A colleague later found a note in the White House—Foster’s inventory of complaints against the media, Republicans, and others in Washington. It ended, “Here ruining people is considered sport.”

After Starr replaced Fiske, hard-line House Republicans and Christopher Ruddy, a right-wing journalist hired by the reactionary billionaire Richard Mellon Scaife to investigate Foster’s death, pressed him to reopen the Foster case. It wasn’t hard to persuade Starr. His protégé, Kavanaugh, threw himself into the work.

Kavanaugh reviewed gruesome photos and notes on Foster’s body. He visited the site where Foster was found, went with investigators on interviews, and examined Foster’s financial records. He ordered analyses of carpet fibers from Foster’s home, car, and office for matches of those found on his clothes; right-wing conspiracists had suggested that Foster was rolled in a carpet after he was killed, his body taken to the federal park and posed to suggest suicide. Kavanaugh even got a hair sample from Foster’s teenage daughter, now long after her dad’s death, to compare with strands on his clothes.

In June 1995, Kavanaugh wrote in a memo to Starr and his team: “At this point, I am satisfied that Foster was sufficiently discouraged or depressed to commit suicide.”

Then he described six ways to expand the probe.

They would search all of Fort Marcy Park and its many trees for the missing bullet; without it, Kavanaugh suggested, theories would persist that Foster was killed elsewhere and dumped there. To identify a fingerprint on the gun, Kavanaugh proposed searching a Foster family home in Hope, Arkansas, for a print from Foster’s deceased father for comparison. The IRS would “perform a full financial analysis of Foster.” Investigators would “track down all of Foster’s foreign travel,” and “investigate an alleged Swiss bank account” in his name (it didn’t exist). The sixth step remained under discussion: investigating whether Foster had an affair. “We have asked numerous people about Foster’s alleged affair with Mrs. Clinton,” Kavanaugh told the team, “but have received no confirmation of it. If we want to pursue this line of investigation further, however, we should ask Mrs. Clinton about the alleged affair at her next interview.” (The First Lady, according to someone familiar with the case, “was never asked any such question.”)

In a July 1995 memo, Kavanaugh expressed greater certainty than he had the previous month about the probable cause of death. “To my mind,” he wrote, “the evidence clearly establishes that Mr. Foster was sufficiently depressed or discouraged to have committed suicide.” Foster had talked to a sister about seeing a psychiatrist. At Fort Marcy, he was found with a list of doctors in his wallet. He’d broken into sobs at dinner with his wife the previous weekend, and had just begun taking antidepressants. He “wrote a note that is a mixture of fury and despair,” Kavanaugh wrote, and “was overwhelmed by the sense of failure.” (Three days later, FBI agent Chuck Regini similarly wrote to Kavanaugh that “we have established beyond a reasonable doubt” that Foster shot himself.)

Kavanaugh also dismissed talk of a White House cover-up, writing in the July memo, “At this point I do not believe there is evidence warranting criminal prosecution of any individual in the Foster documents investigation.”

Yet the probe dragged on more than two years longer.

The same deference to the Republican right wing that led Starr and Kavanaugh to reinvestigate Foster’s death compelled them to drag it out long after they concluded Foster committed suicide. Kavanaugh’s files at the National Archives are stuffed with material from and about the conspiracists. Included is a five-page fundraising letter from conservative televangelist Jerry Falwell hawking a $38 video “exposé” entitled The Death of Vince Foster: What Really Happened? and seeking additional money to “help us with this vital truth campaign.” For some on the right, the Foster investigation had become too important a revenue source to cut short merely because no crime was committed.

Exchanges among the Starr, Clinton, and Foster legal teams became increasingly tense with time, and offer early evidence of the petulance Kavanaugh would later show the nation at his confirmation hearings. In late 1995—two and a half years after Foster died and months after Kavanaugh privately had concluded his death was a suicide—the Starr team pressed for more material and interviews even as Lisa Foster was preparing to remarry at the new year. When she said through her lawyer, James Hamilton, that only Starr could review Vince Foster’s diary, Kavanaugh took umbrage. It was “an implicit attack on my integrity and credibility,” he wrote in an October memo intended “for posterity” in the office files, echoing complaints to his colleagues.

The Clintons’ lawyer, David E. Kendall, contacted Kavanaugh early on to see what he might need, and to renew their acquaintance (After law school, Kavanaugh had been a summer associate at Kendall’s firm, Williams & Connolly.) Initially Kendall was baffled that Starr had opened the probe on the heels of Fiske’s report concluding Foster’s death was a suicide. But by the investigation’s second year Kendall was “enraged,” he told me. “They seemed to be chasing every possible conspiracy theory. When you start doing that, it’s endless.”

On October 10, 1997, Starr finally announced the independent counsel’s finding: Foster had committed suicide. In a statement for the family, sister Sheila Foster Anthony assailed Starr for having indulged the conspiracists and giving credence to “any thought that the president of the United States somehow had complicity in Vince’s death.”

The conspiracy-mongers were enraged as well, proving just how wrong Starr and Kavanaugh were to think the far right could be appeased by a lengthy investigation. Ruddy, who would later become chief executive of the far right Newsmax Media and a Trump confidant, wrote a book alleging a Clinton cover-up, abetted by Starr’s team. Two decades later, Ruddy’s friend Donald Trump, running for president, still insisted Foster’s death was “very fishy.” He told the Washington Post in 2016, “I will say there are people who continue to bring it up because they think it was absolutely a murder.” (“Other people think X” was the formulation Trump reserved for his most incendiary and irresponsible accusations.)

Starr, in a memoir published 21 years later, as the Senate considered Kavanaugh’s Supreme Court nomination, hailed the Foster report as “the definitive word on the cause of death,” though he added the caveat that “we couldn’t lay entirely to rest far-fetched theories.”

Litigation continued even after Starr publicly pronounced Foster’s death a suicide. Starr summoned Kavanaugh back from Kirkland & Ellis, the conservative law firm Kavanaugh joined after completing the Foster report, to handle a lawsuit against Foster lawyer Hamilton seeking notes of a conversation Hamilton had with Foster nine days before the suicide. Hamilton argued that attorney-client privilege shielded the notes even after a client’s death, and associations of lawyers and hospices backed him, fearful of the chilling precedent that an adverse ruling would set.

The case ended up before the Supreme Court, where, on June 8, 1998, Kavanaugh made his only appearance at the high court before he would arrive as a justice. Of the attorney-client privilege, Kavanaugh said, “Death ends it.”

The court ruled 6-3 against him.

A quarter century after Foster’s death, Bill Clinton attested to the bitterness that lingers over Kavanaugh’s wild goose chase. Kavanaugh’s ordeal during his confirmation process, Clinton told an audience in May 2019, was a sort of karmic payback for how Kavanaugh treated Foster’s family and friends.

“He didn’t have any problem,” Clinton said, “making us put up with three years of Vince Foster nonsense.”

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Jackie Calmes

Jackie Calmes is a national columnist for the Los Angeles Times and the author of Dissent: The Radicalization of the Republican Party and Its Capture of the Court.