There is something 'fishy' about one of Trump's potential Supreme Court nominees


Judge Brett Kavanaugh sits on the United States Court of Appeals for the District of Columbia Circuit.  Several news articles, including those herehere, and here, mention him as a leading contender to be nominated by President Donald Trump to replace retiring justice Anthony Kennedy on the United States Supreme Court.

The nomination of Kavanaugh would be ironic, given candidate Trump's disparaging comment about a death investigation in which Kavanaugh played a major role.  On July 20, 1993, Hillary Clinton's former law partner, and then deputy White House counsel for President Bill Clinton, Vincent Foster, was found dead in Virginia's Fort Marcy Park.  The official U.S. government conclusion is that Foster committed suicide in the park.  In May of 2016, candidate Trump stated that the circumstances of the death were "very fishy."  At the 2004 confirmation hearing for Kavanaugh, Sen. Orrin Hatch (R-Utah) stated: "Mr. Kavanaugh served in the Office of Independent Counsel under Judge Starr, where he conducted the office's investigation into the death of former Deputy White House Counsel Vincent W. Foster, Jr."  A 1998 New York Times article also states that Kavanaugh "led the investigation into the death of the deputy White House counsel Vincent W. Foster Jr."

Before Trump makes his decision, he should speak with Miguel Rodriguez, who was an assistant United States attorney in Sacramento, California when he was selected to lead the Foster death investigation for Kenneth Starr's Office of Independent Counsel for a time in the mid-1990s.  I wrote about Rodriguez in my AT article in May of 2016 discussing the Foster case and my Freedom of Information Act lawsuit to force public disclosure of photographs of Foster's deceased body taken at the park.

After my lawsuit ended, documents were discovered in the National Archives that were written by Rodriguez, including a 31-page memorandum to his fellow prosecutors in the OIC dated December 9-29, 1994 on the subject of "November 29, 1994 Meeting Concerning Foster Death Matter And Supplemental Investigation Prior to Grand Jury."  The memorandum explains why the evidence does not support a conclusion of suicide in the park and states in its first paragraph that Kavanaugh was at the meeting.  At pages 18-20 of the memorandum, Rodriguez states that he has seen two photographs of Foster's neck that show a wound on the neck.  The government's official conclusion was that there was no wound on the neck.  Rodriguez states that one of the photos was an autopsy photo, and the other was taken when Foster was in the park.  As I stated in my AT article, Rodriguez's memorandum:

... states that one of the Polaroid photos "clearly depicts a dark, burnt appearing, blood area on VF's neck."  The memorandum states that Rodriguez was "confident" that this was caused by a stun-gun or Taser.  The memorandum states that an autopsy photograph (not a Polaroid taken in the park) shows two puncture wounds on the right side of Foster's neck, and that the District of Columbia Medical Examiner "observed the appearance of crater-like indentations on the right side of the neck."

Another copy of the Rodriguez memorandum, with different redactions, is linked at this page on the website maintained by citizen-researchers Hugh Turley, Patrick Knowlton, and John Clarke.  Also linked there is Rodriguez's resignation letter, dated January 17, 1995, which states that "the existing FBI interview reports and USPP [United States Park Police] interview reports do not accurately reflect witness statements" and that after "having refreshed their recollection with new photographic evidence," "four emergency medical personnel identified ... trauma each had observed on Foster's right neck area."

An article by Turley at Accuracy in Media cites an article at Turley's website, which includes a link to an audio recording of the late Reed Irvine, founder of AIM, speaking with Kavanaugh about the Foster case.  In the conversation, Kavanaugh does a poor job defending the OIC's Foster investigation.

Kavanaugh may have a record of judicial opinions demonstrating fidelity to the rule of law, the relevant facts, and the United States Constitution.  But that is only his judicial opinions.  Any such record cannot excuse his work on the investigation into the death of Vincent Foster.

Rodriguez went back to the U.S. attorney's office in Sacramento, where, following a gender identity change, he is today serving the public and continuing to fight crime.

President Trump should find somebody to nominate who has fidelity to the rule of law, the relevant facts, and the United States Constitution, but who refuses to conduct "fishy" investigations that misrepresent the facts to the American people and make a mockery of the rule of law.

Kavanaugh may become a Supreme Court justice.  But I will teach my children about Rodriguez.

Allan J. Favish is an attorney in Los Angeles.  His website is  James Fernald and Mr. Favish have co-authored a book about what might happen if the government ran Disneyland, entitled Fireworks! If the Government Ran the Fairest Kingdom of Them All (A Very Unauthorized Fantasy).

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