Views of presidential power drawing questions

WASHINGTON— Supreme Court nominee Brett Kavanaugh’s past writings that a president should not be distracted by lawsuits and investigations could become a flash point in what’s already shaping up to be a contentious confirmation battle.

With special counsel Robert Mueller investigating whether President Trump obstructed justice, questions about whether a chief executive can be subpoenaed or indicted could potentially reach the Supreme Court. Though there’s no indication at this point that will happen, it’s sure to be a major topic of questioning at Kavanaugh’s confirmation hearing as the Senate weighs whether to confirm him to replace retiring Justice Anthony Kennedy.

Democrats opposing Kavanaugh are already weighing in, saying the past writings — particularly a legal article he wrote on the separation of powers in 2009 — suggest he would be inclined to side with Trump.

Senate Democratic leader Chuck Schumer said Tuesday that he “seems exactly like the kind of man President Trump would want on the Supreme Court if legal issues from the Mueller probe arise.”

Kavanaugh was a key player in the investigation that led to President Bill Clinton’s impeachment, but a decade later he wrote that the experience, coupled with his time working for President George W. Bush, had persuaded him that presidents should not have to face criminal investigations, including indictments, or civil lawsuits while they are in office. He said Congress should pass a law temporarily protecting presidents from such distractions in office.

Clinton, for example, “could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal investigation offshoots,” Kavanaugh wrote in 2009.

If applied on the court somehow, those opinions could have a direct impact on Trump, who has also been dogged by allegations of sexual harassment.

In the Russia probe, it’s theoretically possible the court could have to weigh in on the question of whether a president is immune from criminal prosecution.

In addition to indictment, another issue tied to the Mueller investigation that has not been fully resolved in the courts is whether a sitting president must respond to a subpoena from investigators.

In the 2009 article, Kavanaugh wrote that Congress should also exempt the president from questioning by criminal prosecutors or defense counsel.

A president concerned about an ongoing criminal investigation “is almost inevitably going to do a worse job as president,” he wrote.

And in a 1998 article in the Georgetown Law Journal, Kavanaugh wrote that Congress should give the president the ability to fire special counsels, an opinion that Democrats have highlighted in the hours since he was nominated.

Kavanaugh’s reasoning, however, was not to protect presidents but to make them more accountable. He wrote that presidents can complain that independent counsels are politically motivated while implying they are powerless to do anything about it. Giving the president firing power would “force the president and his surrogates to put up or shut up.”