U.S. Circuit Judge Brett Kavanaugh, a former clerk for Supreme Court Justice Anthony Kennedy who is viewed as one of the leading contenders to replace him, has argued that presidents should not be distracted by civil lawsuits, criminal investigations or even questions from a prosecutor or defense attorney while in office.
Kavanaugh had direct personal experience that informed his 2009 article for the Minnesota Law Review: He helped investigate President Bill Clinton as part of independent counsel Kenneth Starr’s team and then served for five years as a close aide to President George W. Bush.
Having observed the weighty issues that can consume a president, Kavanaugh wrote, the nation’s chief executive should be exempt from “time-consuming and distracting” lawsuits and investigations, which “would ill serve the public interest, especially in times of financial or national security crisis.”
If a president were truly malevolent, Kavanaugh wrote, he could always be impeached.
Kavanaugh’s position that presidents should be free of such legal inquiries until after they leave office puts him on the record regarding a topic of intense interest to Donald Trump — and could be a central focus of his confirmation hearing if Kavanaugh were nominated to succeed Kennedy, legal experts said.
The president is facing several legal challenges, including a civil defamation lawsuit filed by Summer Zervos, a former contestant on his reality show, “The Apprentice,” who has said Trump groped her. Earlier this month, New York’s highest court rejected Trump’s attempt to halt discovery in the suit, paving the way for the president to be deposed.
At the same time, special counsel Robert Mueller III is in a standoff with Trump’s lawyers over his request to interview the president for his investigation into Russia’s interference in the 2016 campaign — a fight that could end up before the Supreme Court.
If Kavanaugh is the nominee, “this will be a very central topic of questions from members of the Senate,” said Stephen Vladeck, professor of constitutional law at the University of Texas School of Law. “He is a staunch defender of executive prerogative. The question is just how far he would go in cases really testing whether there is any limit to that theory.”
Akhil Reed Amar, a professor of constitutional law at Yale University and a friend of Kavanaugh, said his views were “not out of the mainstream or eccentric.”
“But it might appeal to a president who believes very much in presidential power because Brett Kavanaugh very much understands presidential power and respects it,” Amar said.
Kavanaugh declined to comment.
Trump said Friday he has narrowed his list of Supreme Court finalists to five candidates, including two women, and plans to announce his nominee July 9. Kavanaugh is among those believed to be a contender, one White House adviser said Friday.
The 53-year-old judge was not on Trump’s original list of Supreme Court candidates released during the campaign, but the White House added his name in the fall — a move that some believed might make Kennedy more comfortable with retiring.
Kavanaugh clerked for Kennedy in 1993 and remains close to the justice. A friend who was with both men several weeks ago and requested anonymity to describe a private meeting said they did not discuss the possibility of Kennedy’s retirement, but it was apparent that the two have deep personal respect for each other.
Friends describe Kavanaugh as down-to-earth and accessible.
“Even though he has Ivy League credentials and a fancy job, he’s kind of a regular, all-American guy,” said Helgi Walker, a Washington litigator who worked with Kavanaugh in the White House Counsel’s Office during the Bush administration. “He likes to play basketball and drink beer. . . . It’s very refreshing in a town like Washington.”
But the judge has also spent much of his career in the trenches of some of the country’s most polarizing political fights. Democrats who said he was too partisan delayed his nomination to the federal bench for three years.
After graduating from Yale Law School and completing three clerkships, he played a key role in investigations of Clinton. He led an inquiry into the death of Clinton’s White House counsel, Vincent Foster, who committed suicide in a wayside of the George Washington Parkway. Working as associate counsel in Starr’s office, he co-wrote the portion of the independent counsel’s report that focused on Clinton’s relationship with White House intern Monica Lewinsky, which outlined the possible grounds for impeachment.
Clinton had denied having sexual relations with Lewinsky in a civil case brought by Paula Jones, who sued him alleging sexual harassment. Starr’s report cited that testimony as false.
Writing in the Minnesota Law Review article, Kavanaugh briefly noted that he “worked for Judge Starr,” who operated under a “badly flawed” law, “particularly the extent to which it allowed civil suits against presidents to proceed while the President is in office.”
Notwithstanding his own role in the Starr report, Kavanaugh suggested that Clinton was ill-served by having to respond to the Jones lawsuit. He said that while the Supreme Court “may well have been entirely correct” in saying that Clinton had to respond to the lawsuit, he said Congress may have been “wise” to allow for a deferral of the lawsuit while Clinton was president to “allow the President to focus on the vital duties he was elected to perform.”
Kavanaugh acknowledged in the article that, in deferring such cases, concerns might be raised about whether a president is above the law and whether a “lawbreaking President” might get away with something. But he dismissed such concerns by saying a president in that instance could be impeached.
Kavanaugh went on to serve for five years under Bush, including two years in the White House Counsel’s Office and three years as staff secretary, which enabled him to see firsthand that “the job and the pressure never stop,” he wrote in the 2009 article.
Bush nominated Kavanaugh to the federal bench in 2003.
Democrats tried to block his confirmation, citing his work on the Starr report and his tenure in the Bush White House.
It wasn’t until 2006 that he was confirmed by a vote of 57-to-36. At the time, then-Senator Edward Kennedy said Kavanaugh “would be the youngest, least experienced and most partisan appointee to the court in decades.”
When Kavanaugh was sworn in during a Rose Garden ceremony, Anthony Kennedy delivered the oath.
Since then, Kavanaugh has written nearly 300 opinions during his dozen years on the U.S. Court of Appeals for the District of Columbia Circuit, often supporting presidential power and urging restraint of government bureaucracy.
Kavanaugh “has taken a very aggressive approach and would transfer a great deal of power to the president and withhold a good deal of power from administrative agencies,” said Lisa Heinzerling, a Georgetown University law professor who was a high-level Environmental Protection Agency official during the Obama administration.
A number of Kavanaugh’s opinions fit squarely into Trump’s thinking.
Kavanaugh has been a leading defender of the government’s position when it comes to prosecuting terrorism suspects through military commissions and takes a dim view of international law. He declared unconstitutional the structure of a consumer watchdog agency, finding that it gives too much executive control to a “single unaccountable, unchecked director,” in a decision reversed earlier this year by his colleagues.
When the court on which he serves allowed a pregnant immigrant teen in federal custody to access abortion services, Kavanaugh objected, saying the majority had created a new right for undocumented minors to “immediate abortion on demand.” And in one of many challenges to gun-control laws in the nation’s capital, Kavanaugh said he would have struck down the city’s regulations banning certain semiautomatic long guns.
The District’s Circuit often reviews high-profile, politically charged cases involving separation of powers and government regulations and is considered something of a pipeline to the Supreme Court. Chief Justice John Roberts Jr. and Justices Ruth Bader Ginsburg, Clarence Thomas and the late Antonin Scalia all served on the bench before being tapped for the high court.
The current chief judge, one of Kavanaugh’s colleagues, is Merrick Garland, who was nominated to the Supreme Court in 2016 by Obama but blocked by Senate Republicans.
In the heat of the judicial battle, Kavanaugh described him at a public event as “supremely qualified” for the high court and — without telling the Senate how to act — suggested lawmakers eventually come up with a new confirmation process.
The Washington Post’s Robert Barnes, Alice Crites, Philip Rucker and Julie Tate contributed to this report.