I don’t know whether Brett Kavanaugh, Donald Trump’s U. S. Supreme Court nominee, should be confirmed. But I can tell you that for an ordinary civilian like me, trying to come to a considered opinion about that is a tall order.
The sources we all naturally turn to in these things are too preoccupied with their own agendas to help out much. The U. S. Senate, which has to sign off on the nomination, is so riven and embittered that the members are serving up nothing but partisan noise. And the media heavyweights who’re supposed to be cutting through all that are as often as not adding to the clamor. When they’re not misstating Kavanaugh’s views, they’re more interested in handicapping his chances than illuminating his record.
I’m not here to defend Kavanaugh. Nothing qualifies me to do that. What I’m going to do instead is offer a small case study in the extent to which an interested citizen wanting to act responsibly here is pretty much on his or her own.
Within hours of the announcement of Kavanaugh’s nomination, he was branded by the usual suspects as a “dangerous radical.” And he was pilloried on the Senate floor as Trump’s “get out of jail free card.” The basis for that characterization was a 2009 Minnesota Law Review article arguing, among a number of things, that sitting presidents should be immune from criminal and civil proceedings against them until they’re out of office. Another article in the Georgetown Law Journal in 1998 also got a passing mention.
Some media outlets converted Kavanaugh’s view that Congress should exempt the president from legal process into the view that the Constitution has already done that. Either way, the suggestion lurking under the “get out of jail free card” label is that Trump and Kavanaugh have a corrupt unspoken deal that, should a criminal indictment of Trump ever reach the Supreme Court, Kavanaugh will decide in his favor.
That all sounded pretty slimy, so I totally geeked out, working through both the 1998 and 2009 articles, as well as several key Supreme Court cases they cited. Here’s my dispatch from the weeds.
The 2009 article got the most attention but the one from 1998 is actually more revealing. Cherry-picking detractors zeroed in on one statement to convict Kavanaugh of craven deference to presidents generally and Trump in particular. He proposed that Congress enact legislation providing that, “The President of the United States is not subject to indictment or information under the laws of the United States while he serves as President. The statute of limitations for any offense against the United States committed by the President shall be tolled while he serves as President.” “Tolling” the statute of limitations means stopping the clock on it until the President leaves office.
What the media outlets and Facebook lawyers neglected to point out is that this proposal occurs in an article defending a law authorizing special prosecutors to investigate the Executive branch, including the President. Kavanaugh dismisses debates over who should appoint special prosecutors and when as “illusory,” noting that, “Even the most severe critics of the current independent counsel statute concede that a prosecutor appointed from outside the Justice Department is necessary in some cases” (emphasis his). So the article offers a clutch of proposals that Kavanaugh thinks would make a special prosecutor law more effective (emphasis mine). In that connection, the proposal immediately following the one about presidential immunity would sharply restrict the executive privilege that presidents appeal to when they don’t want to disclose information to investigative bodies.
Kavanaugh’s preferred venue for reforming special prosecutor laws is Congress because he says it’s “debatable” whether the Constitution bars criminal indictment of the President. That isn’t just his opinion. The issue has in fact been debated for decades with no settled outcome. In a 2017 article on presidential obstruction of justice, University of Chicago Law School professors Daniel J. Hemel and Eric A. Posner note that, “…the claim that a sitting president cannot be convicted of a crime while in office does not represent settled law.” So nothing has changed in that regard since Kavanaugh said as much in 1998.
The 2009 article doesn’t add much to the earlier one. It’s a laundry list of policy proposals, whose adoption Kavanaugh thought would make the government operate more efficiently. In 2009 he expanded the immunity he thinks Congress should confer on the President to both criminal and civil proceedings. He defended expanded immunity not on Constitutional grounds but because he thinks legal proceedings, civil or criminal, brought against the president would impair his or her ability to carry out the duties of the office.
President Bill Clinton claimed exactly that sweeping immunity merely in virtue of his office when Paula Jones sued him for sexual impropriety. And his argument for it was the same as Kavanaugh’s. But a unanimous U. S. Supreme Court didn’t see it Clinton’s way.
I’m not a lawyer, but from what I can tell, the expansive immunity that Kavanaugh thinks Congress should grant the president has never in the whole history of the Republic been conferred on the President by the Supreme Court. The closest it ever came wasn’t very close. In Nixon v. Fitzgerald(1982), a sharply divided Court held, five votes to four, that the President has absolute immunity from civil damage claims for actions taken in his official capacity. The Court was careful to note that it was taking no position on whether presidential immunity extends to criminal prosecutions as well.
So what about this “get out of jail free” stuff? Hard to credit for several reasons, not least being that it’s silly on its face. In neither his 1998 nor 2009 article did Kavanaugh propose that the President be permanently exempt from prosecution. That would be unconstitutional under Article I, Section 3, providing that a President impeached in the House and convicted in the Senate would be “liable and subject to Indictment, Trial, Judgment and Punishment, according to Law,” on removal from office. Kavanaugh is conservative, but he’s not crazy.
Neither can I see Trump’s nemesis Special Counsel Robert Mueller indicting him for anything, not, God knows, because Trump hasn’t done anything indictable, but because Mueller doesn’t strike me as the type who would ask a grand jury to return an indictment whose constitutional credentials are up in the air. Even the Watergate Special Prosecutor, who indicted several of Richard Nixon’s senior minions, named Nixon only as an unindicted co-conspirator.
Even if Mueller rolls the constitutional dice on an indictment, which ends up in the Supreme Court, Kavanaugh can’t save His Orangeness all by himself. He’d have to persuade four other justices to do something that the Court has been unwilling to do in the whole history of the Republic. Even if he’s every bit as talented as his boosters say he is, I can’t see him pulling that off.
But, look, I didn’t tell you all this to make you feel better about Brett Kavanaugh. I did it to make you feel worse about the people who’re making it so hard for us to do our due diligence on this.
Nor can I forget or forgive the people who were clutching their pearls about Hillary Clinton’s e-mails, Goldman Sachs speeches and whatnot instead of voting for her. If they had, it would be the Fox News gargoyles now sliming her Supreme Court nominees, maybe including Merrick Garland, as “dangerous radicals.”