By Anthony Marcum
Within minutes of Brett Kavanaugh’s Supreme Court nomination, opponents were quick to highlight a 2009 article written by Kavanaugh for the Minnesota Law Review. Some claim the article supports the position that the president is shielded from any legal liability, including criminal prosecution. With this, opponents to President Trump’s selection have speculated that Kavanaugh was chosen to protect Trump from Special Counsel Robert Mueller’s current investigation.
This, however, is a vast misreading of Kavanaugh’s work.
The 2009 article was adapted from a speech Kavanaugh gave to law students only weeks before the 2008 election, addressing possible challenges facing the new president. In it, he recalls his experience working for Kenneth Starr during the President Clinton investigation and in the White House during the Bush administration.
Next is where critics get it wrong. “Having seen first-hand how complex and difficult that job is,” Kavanaugh writes, “I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible.” Kavanaugh then argues that Congress should pass legislation deferring any civil suits, criminal investigation or prosecutions until a president is out of office.
The imperative words are Congress and legislation. Kavanaugh is not expressing a legal opinion, but a policy proposal. The article is, in fact, silent as to whether he believes the constitution bars prosecuting or suing a sitting president. Yet, Kavanaugh’s proposal for greater legislative protections offers a hint. After all, if Kavanaugh believed that the constitution forbids suits, investigations or prosecutions against a sitting president, legislation to defer them until after the president’s tenure would be unnecessary.
Even if Kavanaugh believed the constitution prohibits the indictment of a sitting president, his view would be well within the mainstream. The Office of Legal Counsel (an office within the Department of Justice) has for decades concluded that a sitting president is constitutionally immune from prosecution. And most legal scholars similarly believe a president is immune while in office.
Importantly, although Kavanaugh’s legislative proposals are executive-friendly, he still recognizes Congress’s crucial role in checking the president’s powers. As he notes, the constitution offers Congress the ultimate “check against a bad-behaving or law-breaking President” – impeachment.
Still, some may contend that impeachment is unlikely if legislation exists barring criminal investigations. But the article does not propose barring congressional investigations. Indeed, in an earlier 1998 article, Kavanaugh argues that, when concerning the president, “congressional investigation must take place in lieu of criminal investigation.” He further claims that, historically, congressional investigations are where the public learns about “committed malfeasance in office.”
A fair review of Kavanaugh’s writings should reassure those who have concerns about his judicial independence. Although he may have suspicions about the merits of civil suits and prosecutions against sitting presidents, he has never claimed that a president is above the law. On the contrary, he supports robust congressional review and the power of the political process to remove an unworthy president from power. These are not partisan beliefs. Kavanaugh’s 2009 article was published in the first year of an Obama presidency, and his earlier 1998 article was written soon after work helping to investigate President Clinton.
As for any Supreme Court nominee, the Senate should carefully review and scrutinize Kavanaugh’s record. But a mischaracterization of his writings debases his critics’ credibility and serves as another example of the lamentably polarized judicial nomination process.