Since the Watergate era of 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 probes led to impeachment charges in Congress.
But Brett M. Kavanaugh, President Trump’s nominee to the Supreme Court, has argued these special investigations are a mistake and may well be unconstitutional. Though 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 probe 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. Only after leaving office may a former president be criminally prosecuted, they say.
But 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 amid the probe by special counsel Robert S. Mueller III into Russian interference in the 2016 election and possible collusion with the Trump campaign.
If confirmed to the high 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.
In explaining his position, Kavanaugh says the Constitution appears to assign to Congress the exclusive duty to investigate a president’s wrongdoing and, if necessary, to bring impeachment charges.
“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,” he wrote shortly after President 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. “That has been the standard view of Republicans and Democrats.”
Indeed, no president has been charged with a crime or faced a prosecution. But Kavanaugh said he favored going further and shielding the president from criminal investigations while in office.
That has not been the standard view of the law until now. In 1974, in United States vs. Nixon, the Supreme Court rejected the president’s claim of executive privilege and said he must turn over the Watergate tapes to the special prosecutor who was leading the investigation. Nixon resigned a few days later after tapes revealed he had indeed led a cover-up of the White House involvement in the Watergate break-in.
And in 1997, the high court in Clinton vs. Jones unanimously rejected President Clinton’s bid for a temporary deferral of a sexual harassment suit filed by Paula Jones, a former Arkansas state employee. That led to Clinton being questioned under oath, where he denied having a sexual relationship with a White House intern. The false testimony became part of the criminal investigation led by independent counsel Kenneth Starr, who recommended impeachment charges to the House of Representatives. Kavanaugh served as a top deputy to Starr.
Based on his experience later, including serving as the staff secretary to President George W. Bush, Kavanaugh said he came to believe these investigations distracted the president and damaged the country. “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,” he said in 2009.
He said Congress should pass a law “exempting a president — while in office — from criminal prosecution and investigation, including questioning by criminal prosecutors and defense counsel.” He explained this was not just a wise idea, but what the framers of the Constitution intended all along.
“The framers appeared to anticipate that a president who commits serious wrongdoing should be impeached by the House and removed by the Senate — and then prosecuted thereafter,” he wrote in a 1998 article called “The President and the Independent Counsel” in the Georgetown Law Journal. “The Constitution seems to dictate that congressional investigation must take place in lieu of criminal investigation when the president is the subject of the investigation, and the criminal prosecution can occur only after the president has left office.”
Writing in the Minnesota Law Review in 2009, Kavanaugh said special investigations of the president’s top advisors are justified, but not if the president himself is a target of the probe. “I believe the president should be excused from some of the burdens of ordinary citizenship while serving in office,” he wrote. While he agreed in principle “no one is above the law in our system of government,” he said the president occupies a unique role which calls for shielding him while in office.
“The point is not to put the president above the law or eliminate checks on the president, but simply to defer litigation and investigations until the president is out of office,” he said. Some may say “the country needs a check against a bad-behaving or law-breaking president. But the Constitution already provides that check. If the president does something dastardly, the impeachment process is available. No single prosecutor, judge or jury should be able to accomplish what the Constitution assigns to Congress.”
Kavanaugh, like many conservatives, is fond of the late Justice Antonin Scalia’s lone dissent arguing the independent counsel law — which was in effect from 1978 to 1999 — was unconstitutional because it infringed on the powers of the president. “To repeat, Article II of the Constitution provides: ‘The executive power shall be vested in a president of the United States’. This does not mean some of the executive power, but all of the executive power,” Scalia wrote in 1988 in Morrison vs. Olson. That means the president has “complete control over the investigation and prosecution of violations of the law,” he said.
This is often referred to as the “unitary executive theory,” because it means the executive power cannot be divided up and given to others in the executive branch.
In public talks, Kavanaugh said the high court should overturn Morrison vs. Olson and uphold Scalia’s view. In 1999, he also said the Nixon tapes case may have been wrongly decided. “It took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to disclose information in response to a subpoena sought by a subordinate executive branch official,” he said, referring to the special prosecutor. “That was a huge step with implications to this day.”
In the past year, Trump’s lawyers have asserted a similarly broad view of executive authority over criminal investigations. In letters to Mueller, they said the president could not be charged with obstruction of justice for firing investigators or shutting down their probes. “The Constitution leaves no question that the president has exclusive authority over the conduct and disposition of all criminal investigations,” they said in a June 23, 2017, letter. “It remains our position that the president’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction of justice because that would amount to him obstructing himself,” they wrote on Jan. 29, 2018.
Reacting to his nomination, Senate Democrats pounced on Kavanaugh’s past writings. “Is there any wonder that President Trump chose Kavanaugh?” said Senate Minority Leader Charles E. Schumer (D-N.Y.). “Because he is worried that Mr. Mueller will go to the court and ask that the president be subpoenaed. His views on this issue are more extreme than just about anyone else on that list” of Trump’s previously released names of possible high court candidates.
Kavanaugh defenders fired back, calling this unfair and unjustified. They noted Kavanaugh had proposed Congress pass a law to shield the president from investigations. “This was a policy preference. It is disingenuous to take an argument that Congress should pass an immunity statute and then use it to portray that person as believing that the Constitution already confers immunity. He specifically did not say that,” said Michigan State Law Professor Brian Kalt.
It is not clear whether Mueller will seek a subpoena to require the president to answer questions, and thereby trigger a legal battle. But if so, the case could move quickly to the high court. “It could make a big difference if Kavanaugh replaces [Justice] Anthony Kennedy,” said Neil Kinkopf, a Georgia State law professor and former Justice Department lawyer. “Kennedy would be influenced by the court’s role and the need to get to the truth. A few months ago, I would have predicted the subpoena would be upheld. Now I fear it would not be enforced,” he said.
It is also not clear whether Mueller’s probe will uncover legal wrongdoing by President Trump, but if so, the expectation is he would report that finding to Congress.