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Kavanaugh File: Executive Privilege

Editor’s Note: This is one of a series of stories examining what Democrats are saying about Supreme Court nominee Brett M. Kavanaugh and what Kavanaugh’s record shows on these issues.

With Trump campaign officials under investigation by special counsel Robert Mueller for possible collusion with Russia to unduly influence the 2016 campaign, some Democratic senators have expressed concern that Kavanaugh was hand-picked by Trump in the event that Mueller enters an indictment against the president.

Those senators have pointed to pieces Kavanaugh penned in 1998 and 2009 that make clear Kavanaugh’s opinion that a sitting president should not be criminally investigated or indicted. Whether that means Kavanaugh would rule as a Supreme Court justice that an indictment against Trump would be unconstitutional is another matter. Kavanaugh says he has “a completely open mind” on that question and has never publicly taken a position on it. But he has said and written plenty on the subject. We’ll lay out some of that record and leave it to readers to decide.

What Democrats are saying: “It seems that you [Kavanaugh] have made — you may have intrigued him [Trump] for another reason — your expansive view of executive power and executive immunity. You’ve taken the unorthodox position that presidents should not be burdened with a criminal or civil investigation while in office.” — Sen. Patrick Leahy at Kavanaugh’s confirmation hearing on Sept. 4.

“You personally urged [independent counsel Kenneth] Starr to be aggressive, confrontational and even graphic in his questions [for President Bill Clinton] — we’ve seen your memo on that one. But a few years later after working in a Republican White House, you totally reversed your position and argued that presidents should be above the law and granted a free pass from criminal investigation while in office. ” — Sen. Dick Durbin at the Sept. 4 hearing.

“You displayed expansive views on executive immunity from the law. If you are in that seat, sir, because the White House has big expectations that you will protect the president from the due process of law, that should give every senator pause.” — Sen. Sheldon Whitehouse at the Sept. 4 hearing.

“But these are not normal times. Instead we are here to decide whether or not to rubber-stamp Donald Trump’s choice of a pre-selected political ideologue, nominated precisely because he believes a sitting president should be shielded from civil lawsuits, criminal investigation and prosecution, no matter the facts.” — Sen. Mazie Hirono at the Sept. 4 hearing.

What Kavanaugh’s record shows: Kavanaugh has an interesting history on the issue of criminal investigations involving a sitting president, given that he was once a member of independent counsel Kenneth Starr’s legal team, whose investigation ultimately led to impeachment hearings against President Clinton. Kavanaugh was a lead author of the Starr Report. He later went on to work in the White House counsel’s office under President George W. Bush from 2001 to 2003, and then as staff secretary to Bush. His position on whether a president ought to be subject to criminal investigation changed after his time on Starr’s team.

Georgetown Law School conference, February 1998. Politico dug up a video of a panel discussion about the Independent Counsel Act at a Georgetown Law School conference in February 1998. At the event, Kavanaugh raised the issue of “whether the president is subject to criminal indictment at all, which is a question that has been a lurking constitutional issue for a long time and which at some point here should be resolved so we can determine whether the Congress or an independent counsel should investigate the president when his conduct is at issue.”

Answering his own question, Kavanaugh said, “I tend to think it has to be the Congress. … It [criminal investigation of a president] is war, and if it’s going to be war it’s gotta be Congress, not an isolated prosecutor appointed by three judges we’ve never heard of.”

Moderator Mark Tuohey then asked for a show of hands among the panelists, “How many of you believe, as a matter of law, that a sitting president cannot be indicted during the term of office?”

Kavanaugh was among those who raised their hands.

Georgetown Law Review, 1998. That same year, in an article for the Georgetown Law Review, Kavanaugh wrote that whether “the Constitution allows indictment of a sitting President is debatable.”

“The Framers thus appeared to anticipate that a President who commits serious wrongdoing should be impeached by the House and removed from office by the Senate — and then prosecuted thereafter,” Kavanaugh wrote. “The Constitution itself seems to dictate, in addition, that congressional investigation must take place in lieu of criminal investigation when the President is the subject of investigation, and that criminal prosecution can occur only after the President has left office.”

Kavanaugh said that since the Constitution “does not explicitly address” the question of whether a president is subject to criminal indictment while in office, Congress ought to settle the matter definitively.

“Congress should establish that the President can be indicted only after he leaves office voluntarily or is impeached by the House of Representatives and convicted and removed by the Senate,” Kavanaugh wrote. “Removal of the President is a process inextricably intertwined with its seismic political effects. Any investigation that might conceivably result in the removal of the President cannot be separated from the dramatic and drastic consequences that would ensue. This threat inevitably causes the President to treat the special counsel as a dangerous adversary instead of as a federal prosecutor seeking to root out criminality.”

Minnesota Law Review, 2009. In 2009, Kavanaugh published another lengthy opinion on the issue in an article in the Minnesota Law Review in which he again described the issue as debatable, though (in a footnote), he used different words. “[A] serious constitutional question exists regarding whether a President can be criminally indicted and tried while in office.”

Indeed, the Justice Department Office of Legal Counsel twice concluded — in 1973 and 2000 — that a sitting president cannot be indicted, though that has never been tested before the Supreme Court.

In his Minnesota Law Review piece, Kavanaugh reiterated that a sitting president should not be indicted, and he argued that Congress ought to make that clear in law.

“Having seen first-hand how complex and difficult that job is, I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible,” Kavanaugh wrote. “The country wants the President to be ‘one of us’ who bears the same responsibilities of citizenship that all share. But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office.”

Kavanaugh acknowledged this was “not something I necessarily thought in the 1980s or 1990s,” a period during which he served on independent counsel Starr’s team investigating Clinton.

“Like many Americans at that time, I believed that the President should be required to shoulder the same obligations that we all carry,” Kavanaugh wrote. “But in retrospect, that seems a mistake. Looking back to the late 1990s, for example, the nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal investigation offshoots.”

“The indictment and trial of a sitting President, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis. … And a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.”

Kavanaugh wrote that Congress ought to consider enacting a statute to defer any civil or criminal investigations or prosecutions of presidents until after they leave office.

“In particular, Congress might consider a law exempting a President — while in office — from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel,” Kavanaugh wrote. “Criminal investigations targeted at or revolving around a President are inevitably politicized by both their supporters and critics.”

Some have argued that Kavanaugh’s calls for Congress to settle the issue suggest that short of congressional action, he believes indictment is now constitutional.

In an opinion piece published by Bloomberg, Harvard law professor Noah Feldman makes such an argument.

“Properly understood, Kavanaugh’s expressed views actually support the opposite conclusion: that the president can be investigated and maybe even indicted unless Congress passes a law saying he can’t — which Congress has not done,” Feldman wrote.

“If a law by Congress is necessary to fix the problem, it follows that without such a law, it is perfectly permissible under the Constitution to investigate a sitting president, as Starr did,” Feldman wrote. “Although Kavanaugh didn’t expressly say that a sitting president may constitutionally be indicted, it is a plausible implication of his article. Otherwise, there would be no pressing need for Congress to pass a law saying that he could not be. The courts could intervene and save the president from indictment.”

Kavanaugh confirmation hearing, Sept. 5. There is often a good amount of reading the tea leaves to gauge how a Supreme Court nominee might rule on a given subject. And during the confirmation hearing, Kavanaugh refused to reveal how he might rule on the constitutionality of an indictment of a sitting president. And he warned not to interpret his opinions in the Minnesota Law Review as answering that question.

“I proposed some ideas for Congress to consider,” Kavanaugh said at the confirmation hearing. “Here’s the bottom-line point. They were ideas for Congress to consider. They were not my constitutional views.

“If a case came up that — where someone was — someone was trying to say this is a constitutional principle, I would have a completely open mind on that because I’ve never taken a position on the Constitution on that question,” he said. “I’ve only put out proposals for you all to study, to think about the balance of a president fighting a war, leading a war and a president subject to say, ordinary civil lawsuits as in the Clinton versus Jones case.”

As for the claims that Kavanaugh thinks presidents are “above the law,” as Durbin put it, Kavanaugh disputes that.

Kavanaugh has said that while he doesn’t think presidents should be criminally indicted, he does think that Congress can and should act as a check against presidential misconduct. And, as he said in 2009, presidents should still face potential criminal consequences once they leave office.

“The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office,” Kavanaugh wrote in his piece for the Minnesota Law Review.

“A second possible concern is that the country needs a check against a bad-behaving or law-breaking President,” Kavanaugh added. “But the Constitution already provides that check. If the President does something dastardly, the impeachment process is available.”

During his confirmation hearing, Kavanaugh reiterated that position, saying, “No one is above the law in our constitutional system. … Under our system of government, the executive branch is subject to the law, subject to the court system. … It’s an important part of the constitutional structure.”

On subpoenas and self-pardons: During the confirmation hearing, Democratic Sen. Dianne Feinstein asked Kavanaugh about comments he made nearly two decades ago that raise questions about whether he believes a sitting president can be made to respond to a subpoena. At issue are comments Kavanaugh made at a lawyer roundtable sponsored by The Washington Lawyer and published in 1999 regarding U.S. v. Nixon, in which the Supreme Court ruled against then-President Richard Nixon and required him to turn over audio tapes.

Bloomberg reported that Kavanaugh said then, “Maybe Nixon was wrongly decided — heresy though it is to say so,” and that “Maybe the tension of the time led to an erroneous decision.”

Asked about that comment during his confirmation hearing, Kavanaugh said the quote was “not in context” and was a “misunderstanding of my position.” Kavanaugh called the court’s decision on Nixon “one of the four greatest moments in Supreme Court history.”

But Kavanaugh would not say what he would do under different circumstances when Feinstein asked broadly, “Can a sitting president be required to respond to a subpoena?”

Kavanaugh said he would follow the lead of past Supreme Court nominees and would not respond to “a potential hypothetical.”

Kavanaugh also deflected when asked if the president has “an absolute right to pardon himself.”

“The question of self-pardons is something I have never analyzed,” Kavanaugh said. “It’s a question that I have not written about, it’s a question, therefore, that’s a hypothetical question that I can’t begin to answer in this context as a sitting judge and as a nominee to the Supreme Court.”

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Judge Brett Kavanaugh "argued that presidents should be above the law and granted a free pass from criminal investigation while in office."
Senate confirmation hearing
Tuesday, September 4, 2018