Nominee: Leave questioning to Congress
Kavanaugh argued to shield presidents from all probes
WASHINGTON — Since the Watergate era of the 1970s, four presidents — Richard Nixon, Ronald Reagan, Bill Clinton and now Donald Trump — have faced criminal investigations into their actions led by special prosecutors. For Clinton, those probes led to impeachment charges in Congress and Nixon only avoided a similar fate by resigning.
But Brett Kavanaugh, Trump’s nominee to the Supreme Court, has argued these special investigations are a mistake and may be unconstitutional.
Though he was a key player in the investigation of Clinton, Kavanaugh has since concluded that a sitting president should be accorded temporary immunity from any criminal probe while in office.
Most legal scholars agree the only remedy for a president who breaks the law and commits “high crimes and misdemeanors” is impeachment by Congress. Only after leaving office may a former president be criminally prosecuted, they say.
But Kavanaugh has taken the view of presidential immunity a step further than most. He argues that even an investigation or questioning of a president should not permitted, unless done by Congress.
Kavanaugh’s views, expressed in writings over the last 20 years, are likely to draw more scrutiny, particularly amid the probe by special counsel Robert Mueller into Russian interference in the 2016 election and possible collusion with the Trump campaign.
If confirmed to the high court this fall, Kavanaugh may be called upon to rule on whether the president can be required to answer questions from the special counsel, whether Trump can order the investigation be shut down or whether he can fire Mueller.
In explaining his position, Kavanaugh said the Constitution appears to assign to Congress the exclusive duty to investigate a president’s wrongdoing — and if necessary — to bring impeachment charges.
“The Constitution establishes a clear mechanism to deter executive malfeasance; we should not burden a sitting president with civil suits, criminal investigations, or criminal prosecutions,” he wrote shortly after President Barack Obama took office.
“I think this temporary deferral should excuse the president from depositions or questioning in civil litigation or criminal investigations,” he said in a footnote.
The Supreme Court has not ruled on whether a president can be indicted, but many think the answer is no.
“The mainstream view is that a sitting president is not subject to ordinary criminal prosecution,” said Yale Law professor Akhil Reed Amar, who has praised Kavanaugh’s nomination. “That has been the standard view of Republicans and Democrats.”
No president has been charged with a crime or faced a prosecution. But Kavanaugh said he favored going further and shielding the president from criminal investigations while in office.
That has not been the standard view of the law until now.
In 1974, in United States v. Nixon, the Supreme Court rejected the president’s claim of executive privilege and said he must turn over the Watergate tapes to the special prosecutor who was leading the investigation. Nixon resigned a few days later after tapes revealed he had indeed led a cover-up of the White House involvement in the Watergate break-in.
In 1997, the high court in Clinton v. Jones unanimously rejected Clinton’s bid for a temporary deferral of a sexual harassment suit filed by Paula Jones, a former Arkansas state employee. That led to Clinton being questioned under oath, where he denied having a sexual relationship with a White House intern. The false testimony became part of the criminal investigation led by independent counsel Kenneth Starr, who recommended impeachment charges to the House. Kavanaugh served as a top deputy to Starr.
Based on his experience later, including serving as the staff secretary to President George W. Bush, Kavanaugh said he came to believe these investigations distracted the president and damaged the country.
“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,” he said in 2009.
He said Congress should pass a law “exempting a president — while in office — from criminal prosecution and investigation, including questioning by criminal prosecutors and defense counsel.”
He explained this was not just a wise idea, but what the framers of the Constitution intended.
“The framers appeared to anticipate that a president who commits serious wrongdoing should be impeached by the House and removed by the Senate — and then prosecuted thereafter,” he wrote in a 1998 article called “The President and the Independent Counsel” in the Georgetown Law Journal.
Writing in the Minnesota Law Review in 2009, Kavanaugh said special investigations of the president’s top advisers are justified, but not if the president is a target of the probe.
“I believe the president should be excused from some of the burdens of ordinary citizenship while serving in office,” he wrote.
While he agreed in principle “no one is above the law in our system of government,” he said the president occupies a unique role which calls for shielding