Is this Supreme Court nominee Trump’s ace in the hole?
“(Kavanaugh) has very strong views about a sitting president not being interfered with, with criminal charges or civil lawsuits. ... Trump saw Kavanaugh as his Get-Out-of-Jail Free card, and he saw that it was too good to pass up.”— Sen. Ben Cardin, D-Md.
A lifetime appointment to the most powerful court in the land should come with tough questions and a thorough vetting. But there’s a line where “tough” crosses over into “ridiculous,” and the question of whether President Trump picked Brett Kavanaugh for the Supreme Court as part of a scheme to stay out of jail falls on the wrong side of that line.
The claim is based on an article by Judge Kavanaugh that appeared in the Michigan Law Review regarding his time working for Ken Starr on the Clinton investigations. After an extensive review of the independent counsel’s work, and his own under what he called a “badly flawed” law, Kavanaugh says: “Looking back into the late 1990s, 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.”
This is the reason Democrats like Sen. Chuck Schumer and Sen. Cory Booker want to keep Kavanaugh off the bench?
Kavanaugh also wrote that when the Supreme Court allowed the Paula Jones lawsuit to go forward and forced President Clinton to testify under oath, the court “may well have been entirely correct” under the law.
“With that in mind, it would be appropriate for Congress to enact a statute providing that any personal civil suits against presidents, like certain members of the military, be deferred while the President is in office,” Kavanaugh wrote.
“Congress should consider doing the same, moreover, with respect to criminal investigations and prosecutions of the President. 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.”
In other words, Kavanaugh does believe that letting a president be president while he’s in office and deferring non-presidential litigation until after he leaves is good policy. But not from courts — from Congress.
Kavanaugh’s opponents, like Sen. Booker, D-N.J., have extrapolated his position into “Get Out of Jail Free.” Trump “picked the one guy who has specifically written that a president should not be the subject of a criminal investigation, which the president is right now,” Booker said.
“Why did Trump stick with Kavanaugh?” Sen. Schumer, D-N.Y., asks. “Because he’s worried that Mr. (Robert) Mueller will go to the court and ask that the president be subpoenaed and ask to do other things necessary to move the investigation forward, and President Trump knows that Kavanaugh will be a barrier to preventing that investigation from going there.”
Law professor and former George W. Bush official John Yoo says they couldn’t be more wrong. “Schumer and Booker are deliberately misrepresenting and distorting an article that Kavanaugh wrote in 2009. The article by the judge says the exact opposite of what Schumer and Booker falsely claim it says.”
And then there’s the math problem: Let’s say Kavanaugh is utterly corrupt, that he plans to serve as Trump’s toady on the Supreme Court. OK, that gives Trump a total of one vote.
The only way the Kavanaugh conspiracy makes sense is if you assume that Trump somehow ensnared at least four other members of the court into his nefarious web. It’s theoretically possible that Trump appointee Neil Gorsuch is in on the scheme, but John Roberts? Samuel Alito? Clarence Thomas?
Trump critics might argue that the other four judges don’t have to be corrupt, just authentically conservative. This view of the law would cause them to support a strong executive and, therefore, side with the president in some future legal fight with Mueller. Well, if it’s possible to rule on behalf of Trump for legitimate legal reasons, isn’t it also possible that Kavanaugh shares that legitimate view based on his principled jurisprudence?