Prez immunity is a hot topic for scholars
Kavanaugh view debated
WASHINGTON — Starting with Watergate in 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 Nixon and Clinton, those inquiries led to impeachment charges in Congress.
But Brett Kavanaugh, Trump’s nominee to the Supreme Court, has argued these special investigations are a mistake and may well be unconstitutional. Although 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 investigation while in office.
To say a president cannot be indicted is not unusual. Most legal scholars agree the only remedy for a president who breaks the law and commits “high crimes and misdemeanors” is impeachment by Congress.
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 be permitted, unless done by Congress.
Kavanaugh’s views, expressed in writings over the past 20 years, are likely to draw more scrutiny, particularly during the investigation by special counsel Robert Mueller into Russian interference in the 2016 election and possible collusion with the Trump campaign.
If confirmed to the Supreme 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.
“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,” Kavanaugh wrote shortly after former 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 added 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.