Brett Kavanaugh’s Record on the Rule of Law Is Much Worse Than His Defenders Contend

Donald Trump shakes Brett Kavanaugh's hand.
President Donald Trump introduces his Supreme Court nominee Brett Kavanaugh in the East Room of the White House on Monday. Leah Millis/Reuters

As Brett Kavanaugh’s Supreme Court confirmation process begins to get underway, some commentators have sought to minimize the significance of the sweep of Kavanaugh’s writings on the subject of presidential immunities. That these commentators—Noah Feldman, Asha Rangappa, and Benjamin Wittes—are distinguished and influential in the public debate make it all the more important to counter their claims.

The issue is the narrow—yet highly important—question of what Kavanaugh has to say about the conditions under which he would recuse himself from any case involving criminal investigations that implicate the president. What he concludes about his recusal obligations may turn out to be of great significance to the court and the Trump presidency.

The recent Feldman, Rangappa, and Wittes commentaries have mistakenly suggested that concerns about Kavanaugh’s views on this topic are ill-placed. They have come to focus in particular on what the judge has written about independent investigations of the executive branch and on the role of Congress in resolving the question of a president’s amenability to the legal process. On the first point, they have noted that, as Kavanaugh has stated the point, he favors “some mechanism … in some cases” for the appointment of a prosecutor outside of existing Department of Justice personnel. On the second, Kavanaugh has written that it should fall to Congress to protect the government from the disabling effects of criminal prosecution of a sitting president by passing a law prohibiting indictment while in office. It is Kavanaugh’s case for Congress’ role that, from the perspective of these commentators, should assuage concerns that as a justice he would be predisposed to find that the Constitution itself insulates the president from legal accountability while in office.

While it is true that Kavanaugh supports some special counsel investigations, he would very specifically and most profoundly exempt the president from them. Indeed, Kavanaugh would go much further in exempting the president not only from prosecution and indictment but also from Department of Justice investigations while in office—and not only investigation but also depositions or questioning in civil litigation or criminal investigations. Under Kavanaugh’s proposal for a revamped prosecutorial structure, the president could nominate a special prosecutor to investigate alleged wrongdoing in the executive branch, but the president could never be one of the investigation’s targets. He writes that a special counsel “should never be appointed to prosecute the president (because a sitting president should never be subject to criminal indictment until he leaves office or is removed by impeachment proceedings).”

So Judge Kavanaugh’s embrace of “some mechanism” for special counsel investigations, but only a mechanism that leaves out the president, will not allay concerns about his pro-executive bias on these questions. And it is incorrect to claim, as Wittes has, that Kavanaugh’s scholarship “makes a strong prudential case for independent investigations of the President and other high officials”—Kavanaugh has written very explicitly and at length that he would place a president above any such law.

What’s more, Kavanaugh’s proposals for a reform of the independent counsel arrangement would leave the president with unfettered authority to protect his own administration from accountability under the law. The special counsel could be appointed only on the nomination of the president; the president would not be required to appoint a special counsel; and if the president does appoint one, the president would remain fully involved in all decisions about the prosecutor’s jurisdiction and could remove the special counsel at will without cause (for any reason or no reason). What’s to stop a president from abusing such blanket authority?

Indeed, even Kavanaugh himself admitted in his 1998 law review article that the use of “the term [independent counsel] would be inappropriate under the regime proposed here because ‘independent’ connotes a counsel appointed outside the Executive Branch.”

Then there is the central question about Kavanaugh’s views of the amenability of the president to legal process while in office as a matter of constitutional law. It seems very apparent from Kavanaugh’s writings that he has second thoughts about Clinton v.
 and the propriety of the court’s decision in that case involving civil litigation. In that regard, he is not alone. But one cannot accurately claim, as Rangappa wrote, that Kavanaugh has remained “agnostic” on these constitutional questions.

It is further striking that Kavanaugh’s assessment of the issues of criminal indictment are fully consistent with the reasoning of Office of Legal Counsel opinions holding that a sitting president cannot, as a constitutional matter, be indicted in office. It is not simply that Kavanaugh believes exposure to indictment is unwise because it would be a crippling blow to the conduct of government (on his account). He makes very clear that this policy perspective is grounded in constitutional considerations—which is precisely how the OLC came to its (mistaken) conclusion.

So Judge Kavanaugh writes:

The Constitution of the United States contemplated, at least by implication, what modern practice has shown to be the inevitable result. The Framers thus appeared to anticipate that a President who commits serious wrongdoing should be impeached by the House and removed from office by the Senate—and then prosecuted thereafter. The Constitution itself seems to dictate, in addition, that congressional investigation must take place in lieu of criminal investigation when the President is the subject of investigation, and that criminal prosecution can occur only after the President has left office.

It is hard to read this passage in any way other than to suggest that the “policy” he favors is the one that the Constitution of the United States “contemplated”—indeed “seems to dictate.” Like OLC, he is effectively reading the policy into the overall Constitution design, with the result that the best policy is, at the same time, the right constitutional outcome.

It is also not just a single passage where Kavanaugh strongly signals his constitutional leanings. The passage is followed by a lengthy discussion that includes treatment of original understandings at the constitutional convention, the Federalist Papers, and the position on the constitutional law question taken by Robert Bork as solicitor general, Leon Jaworski as Watergate’s special prosecutor, and a federal judge in the case of Nixon v. Sirica. Kavanaugh sums up one section of his analysis in saying, “Thus, as the Constitution suggests, the decision about the President while he is in office should be made where all great national political judgments in our country should be made—in the Congress of the United States.”

Notably, Rangappa’s discussion contending that Kavanaugh has remained agnostic on the constitutional law question omits the 1998 law review article in her analysis. And Feldman writes, “Although Kavanaugh didn’t expressly say that a sitting president may constitutionally be indicted, it is a plausible implication of his article.” Neither of those positions—that Kavanaugh has remained agnostic on the question or that his writing implies he believes the Constitution allows the indictment of a sitting president—is sustainable. Wittes writes, “I suppose it is possible to worry that Kavanaugh’s stated policy preferences with respect to congressional action tease his likely judicial holdings on those subjects.” That significantly minimizes and overlooks what Kavanaugh has said, directly and indirectly, about the constitutional question in these law review articles.

This history does not square with the suggestion that, because Kavanaugh has proposed that Congress enact a protection against prosecution of a president while in office, he is “implying” that there is no constitutional basis for this immunity. There is no need to look for “implications” when the judge has embraced just such a constitutional rationale. Moreover, it “implies” little to argue for a congressional enactment in the first instance. If Congress does not act—and there is absolutely no likelihood that it would ever do so—the courts would in no way be hindered in reaching the same result as a matter of constitutional interpretation.

Further, in a judicial opinion in 2016, Judge Kavanaugh unequivocally embraced Scalia’s rejection of the independent counsel on a constitutional basis, writing, “the independent counsel experiment ended with nearly universal consensus that the experiment had been a mistake and that Justice Scalia had been right back in 1988 to view the independent counsel system as an unconstitutional departure from historical practice and a serious threat to individual liberty.”

What’s more, Kavanaugh also strongly indicates that his objections to indictment also lie against investigation. In his 2009 Minnesota Law Review article, the judge specifically links the problematic features of criminal process to both indictment and investigation. He writes: “The point [of deferral of prosecution] is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of out of office.” He follows shortly thereafter with a footnote again setting out as his personal judgment, “I think this temporary deferral also should excuse the President from depositions or questioning in civil litigation or criminal investigations.”

Whether Judge Kavanaugh is right or wrong in his policy or constitutional judgments is beside the point. He has quite clearly declared his position on specific issues already in play in a criminal investigation that directly affects the president. The question of his recusal from participation if those issues come before the court could hardly be more squarely, plainly presented.

This recusal question does not just arise in the normal course, as it might (and has) for many new justices. Rule-of-law controversies have virtually defined this administration as the president demands “loyalty” from senior law enforcement officials, insists on immunity from obstruction of justice charges, and boasts of the “absolute” power to pardon anyone for any reason, including himself.  He has aggressively staked out these positions, with full support from his legal team, in the context of an unprecedented investigation into a foreign power’s intervention on his behalf in the last election. It is in these extraordinary circumstances that the Senate will examine Judge Kavanaugh’s well-developed and strong views on the criminal prosecution of presidents, which are consistent with (if considerably more sophisticated than) those of the president under investigation who has nominated him. The issue of those views and whether they compel recusal will require thorough exploration.

If a Justice Kavanaugh were not to recuse on, say, the question presented by the president’s refusal to comply with a special counsel subpoena for his testimony, and he voted with the president in a close vote, it is not hard to imagine the threat to the court’s credibility.
Moreover, by court practice, he would not explain the reasons why he elected not to recuse, which would inevitably exacerbate suspicions. If, however, he did recuse, and the vote turns out to be 4–4, his absence would render the court powerless to decide a case of historic significance.

These are among the issues that the Senate would have to confront in their questioning of Judge Kavanaugh.

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