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Brett Kavanaugh Needs to Check His Executive Privilege

Despite what his defenders say, it’s not true that the nominee is agnostic about the constitutionality of prosecuting a sitting president.
Brett Kavanaugh

“If you could grow a judge in a vat and design every moment of their life to appeal perfectly to the Republican establishment,” ThinkProgress’s Ian Millhiser laments, “the man who would emerge fully-formed from that vat would be Brett Kavanaugh.” True enough, President Donald Trump’s pick to replace Justice Kennedy has shown up for nearly every conservative legal scrap of the last 20 years, from the Clinton impeachment—he helped write the Starr Report—to the Florida recount fight to the White House Counsel’s office under George W. Bush.

Still, if GOP bioengineers had the technology, surely they’d have hatched a nominee with a different gender and complexion—and a much shorter paper trail.

It seems Kavanaugh never got the post-Bork memo explaining that, if you plan to go before the Senate Judiciary Committee someday, you’re not allowed to publish anything interesting. “Kavanaugh has written extensively on his beliefs that a sitting president shouldn’t be subject to criminal investigations or civil lawsuits,” charges Senator Corey Booker, and “this all but assures he would work to shield Trump” from the Mueller investigation. Congresswoman Carolyn Maloney put it more brusquely: “Trump has nominated a get-out-of-jail free card.”

At issue here are two essays written a decade apart. They’re heavier on policy proposals than constitutional analysis, so they don’t say exactly how a Justice Kavanaugh would rule in any given case. What they do show is that the further he got from his service in Ken Starr’s office, the more Kavanaugh wanted the president cloaked in special immunities from civil suit and criminal investigation.

The first article, published in the Georgetown Law Journal in 1998, calls for a legislative redesign of the Independent Counsel law then in effect. Among other changes, Kavanaugh urged Congress to hold criminal prosecutions of the president until after he leaves office. At the same time, he writes, Congress should bar the president from asserting “any executive privilege, other than a national security privilege, in response to a grand jury or criminal trial subpoena sought by the United States.”

The presidential privileges Kavanaugh would have taken away are arguably more significant than the one he’d cede. No sitting president, including Richard Nixon, has ever been indicted, but presidents have repeatedly abused executive privilege to shield themselves and their associates from scrutiny. By restricting its use, Kavanaugh aimed to “expedite investigations of executive branch officials and ensure that such investigations are thorough and effective.”

By 2009, writing in the Minnesota Law Review, Kavanaugh was aiming at something quite different. “We exalt and revere the presidency in this country”—speak for yourself, buddy—“yet even so, I think we grossly underestimate how difficult the job is.” Five and a half years in the Bush administration had convinced him that “the President should be excused from some of the burdens of ordinary citizenship while serving in office.”

One of those burdens is civil litigation; accordingly, Kavanaugh calls on Congress to provide the president with temporary immunity from personal civil suits. The Supreme Court “may well have been entirely correct” when it held, in Clinton v. Jones (1997), that the Constitution doesn’t mandate such a privilege, Kavanaugh says, but statutory deferral is within Congress’s power and “would allow the president to focus on the vital duties he was elected to perform.” Moreover, Kavanaugh argues, Congress should “consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel” (emphasis added).

It’s a dramatic change of heart: a decade earlier, Kavanaugh had been Ken Starr’s most militant staffer when it came to interrogating the president. “I am strongly opposed to giving the President any ‘break,’” he wrote two days before Clinton’s grand jury testimony. He urged Starr to grill the president on where, besides the blue dress, Clinton might have left his mark: “If Monica Lewinsky says that you masturbated into a trashcan in your secretary’s office, would she [be] lying?” “The idea of going easy on him at the questioning” was “abhorrent,” the young lawyer declared.

The Kavanaugh of the late 1990s wanted the president stripped of all but core claims of executive privilege. The Kavanaugh of 10 years later wants him immunized from questioning altogether. As the hipsters say, I prefer his early stuff.

Kavanaugh 2.0’s policy proposals are mostly solutions in search of a problem. In 2009, when he proposed shielding sitting presidents from investigation, the independent counsel law was long dead, Congress having allowed it to expire 10 years before. The special counsel regulations Robert Mueller now operates under had been invoked only once, in 1999, to probe law enforcement conduct during the Waco raid.

Nor had personal lawsuits ever distracted any president besides Bill Clinton. As the Court noted in Clinton v. Jones, “in the more than 200-year history of the Republic, only three sitting presidents have been subjected to suits for their private actions.” Despite claims that the Court’s decision in that case would open the floodgates to legal harassment, neither Bush nor Obama faced personal lawsuits while in office.

True, the multiple civil actions lodged against Donald Trump—defamation, sexual misconduct, running a fraudulent charity, and so forth—may end up cutting into his “executive time.” But then instead of crafting new immunities for the president, maybe American voters should think twice before electing somebody with Clinton- or Trump-style baggage.

If he’s confirmed, Justice Kavanaugh may well get a chance to rule on whether the president can be sued in state court—an issue the Jones case left open—or forced to testify in the Mueller investigation. Do his policy views really tell us nothing about how he’d apply the law in those cases?

Perhaps Kavanaugh is the all-too-rare jurist who keeps his policy views hermetically sealed off from his interpretive faculties. But the public record also tells us a fair amount about his legal views on presidential privileges. Despite what Kavanaugh’s defenders have suggested, it’s not true that the nominee is agnostic about the constitutionality of prosecuting a sitting president. In the 2009 article, he writes that “the Constitution itself seems to dictate…that criminal prosecution can occur only after the President has left office” by stipulating that the “Party convicted” in an impeachment trial “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” It’s a weak argument: that language applies to all impeachable officers, not just the president, and it’s never been held to bar the prosecution of federal judges—or even vice presidents—prior to impeachment.

It’s unlikely that Robert Mueller will actually indict Trump, but he’s threatened to issue a subpoena compelling his testimony. And as Lawfare’s Ryan Goodman notes, “the two constitutional issues—a president’s immunity from indictment and a president’s immunity from a subpoena—are intertwined.” That’s how the Trump legal team sees it as well: according to Rudy Giuliani, “It’s quite clear you can neither indict or otherwise use the criminal process against the (sitting) president,” which includes the threatened subpoena: “The president should not be distracted.”

A genuine originalist would have a hard time conjuring broad presidential immunities from the constitutional text. The Framers knew how to draft special protections for public officials, as they did for members of Congress in the Speech or Debate Clause. But as James Wilson told the Pennsylvania Ratifying Convention in 1787: “the executive power is better to be trusted when it has no screen”; here “not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.”

On the available evidence, Judge Kavanaugh appears uncomfortable with that arrangement. Presidential power skeptics should be equally uneasy about his nomination.

Gene Healy is a vice president at the Cato Institute and author of The Cult of the Presidency.