Kavanaugh, his doctrine must be rejected
Last April’s FBI raid on the office and residence of Michael Cohen, Donald Trump’s confidant/fixer, left observers with the firm conviction that shoes would eventually drop, perhaps a whole shoe store’s worth. Last Friday one did, with the disclosure that among the reams of evidence seized by the FBI was a tape recording of Trump shortly before the 2016 election giving instructions to Cohen about how to structure the payment of hush money to one of Trump’s former mistresses.
While we don’t yet know the tape’s contents, two things seem safe to say. First, one can disregard anything Trump lawyer Rudolph Giuliani says about the tape, since Giuliani’s often jawdropping dissembling on Mr. Trump’s behalf has left him a living, breathing Pinocchio. The latest in a long line of whoppers came after news of the Trump-Cohen tape emerged. “We’d like (Cohen) to tell the truth,” Giuliani told Politico on Friday, his nose growing. “We’re confident he doesn’t have anything damaging to tell about the president.” The word “confident,” however, hardly seemed the one most applicable.
Second, there is just no way of telling how much of the evidence seized by the FBI may place Donald Trump in legal jeopardy, or how many different varieties of legal jeopardy may apply. The tape alone may be evidence that Mr. Trump conspired to violate federal election laws. All of this has naturally refocused attention on the president’s choice of Brett Kavanaugh as a Supreme Court justice, positioning him to cast the deciding vote in any case testing the president’s expected argument that he should be shielded from subpoenas, civil suits and criminal prosecutions, at least until he leaves office.
It is unlikely that Mr. Trump chose Kavanaugh without knowing of his publicly stated position that a sitting president should be immune from having to testify under oath about his conduct, and from any lawsuit, criminal investigation or indictment. He announced it in a speech delivered at the University of Minnesota Law School while Republican George W. Bush was president, basing it on his “chief takeaway from working in the (Bush) White House” that “the job of president is far more difficult than any other civilian position in government.” This penetrating observation, reinforced by the insight that a president’s job is “complex and difficult,” led him to conclude that a president should be “excused” from being held to judicial account for wrongdoing, no matter how repulsive or egregious, no matter how dishonest or corrupt, no matter how disgraceful.
Kavanaugh’s interest in protecting presidents from judicial scrutiny of their wrongdoing is relatively new. As Ken Starr’s deputy, he enthusiastically spearheaded a criminal investigation into Democrat Bill Clinton based on a sexual relationship, with nary a care in the world about its impact on that sitting president’s ability to carry out his responsibilities. Evidently, the scope of a president’s responsibilities eluded Kavanaugh, whose backers proclaim his brilliance, while pursuing criminal charges against a Democrat, only dawning on him while working for a Republican. This reflects somewhat poorly either on his brilliance or on his commitment to wield the awesome power of a Supreme Court justice evenhandedly.
It is difficult to overstate the affront to American values represented by the position espoused by Kavanaugh. If a president has committed crimes, or has conspired to commit crimes, or has colluded with a hostile foreign power to undermine an American election in order to help get himself elected, Americans — to put it mildly — are entitled to know it. Now, not later. Now, so that the very same legal consequences flow that any other citizen would face for the same conduct.
We don’t “do” kings in this country. Never have, and never should. The Kavanaugh doctrine, so dangerous for America, so antithetical to what America has stood for, deserves to be rejected, but the only way of ensuring that it is rejected is by rejecting Brett Kavanaugh.