For all the contentiousness so far of the Kavanaugh confirmation hearings, the question of the nominee’s recusal from cases testing the president’s legal immunities seems to be fading from view. However, if the record is clear on any point, it is that the case for recusal is stronger than ever.
Contrary to some early commentary on the topic, Judge Brett Kavanaugh has not addressed simply in passing or in ambiguous terms whether a president is immune from indictment—and perhaps even investigation—while in office. He has written at length on his view that the president should enjoy that immunity as a matter of constitutional law, and he has spoken publicly about it. Now he suggests that he meant only that this was a matter for Congress to consider and address. The developing record, augmented by his testimony before the committee, is inconsistent with his reassurances.
Consider the gloss he is now putting on his previously stated and published belief that the Constitution “seems to dictate” that Congress, not federal prosecutors, can investigate a sitting president and that the Constitution “appears to preclude” prosecution of the president when in office.
One of the most important moments in the hearings came on Thursday in an exchange with Sen. Sheldon Whitehouse, who confronted Judge Kavanaugh with images of his participation at a Georgetown University panel in 1998. During that panel discussion, he was specifically invited to participate in a show of hands on the question of whether “as a matter of law” the president was immune from indictment. He raised his hand.
Judge Kavanaugh now suggests that he meant only that the Office of Legal Counsel has taken this position and in this sense has established “law” for the executive branch. This is a strained and implausible reconstruction of the record. It is one thing to acknowledge that the department might be bound by OLC opinions as a matter of rule or policy; it is quite another to refer to those opinions as “law.” And yet it is to “law” that he specifically referred.
At no time in that panel discussion, and certainly not prior to or after the call for the panelists to indicate their positions, did Kavanaugh qualify for the audience what they were to understand by the reference to “law.” The question before the panelists did not concern the OLC’s position but instead the president’s immunity “as a matter of law.”
In fact, the history of the OLC’s position could not possibly have informed the question put to the panel. Certainly the panel would not be asked whether to indicate its agreement with the proposition that OLC opinions are binding on the executive branch. It’s not an interesting question; there is little disagreement about it (except, as some argued, in the case of a special prosecutor or independent counsel, and that too was not the subject of the inquiry.) The panel was asked specifically about the law governing a president’s vulnerability to prosecution when in office. The question was raised in response to Kavanaugh’s specific remarks favoring presidential immunity, and Kavanaugh raised his hand—as unequivocal a statement of position as is possible, on the order of giving a “Yes.” There is no doubt that he understood the question and knew what answer he was conveying. For the panel was then also asked for a show of hands from those who thought a president could be indicted while in office. Kavanaugh did not raise his.
What’s more, the panel was for a symposium organized by the Georgetown Law Journal. A few months later, Kavanaugh published his written contribution to the symposium, and it is in this law-review article that he cites the Framers and the text of the Constitution chapter and verse for his view that “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.”
We’re now to the point where Judge Kavanaugh’s parsing and semantic qualifications are plain to observe. So there is a question, a very live one, of whether, if confirmed, he would come to the court committed on this constitutional position. That question will not be resolved as a result of the hearings. He will stick to his current position, the Democrats will dispute it, and the Republicans will stand by him. But it is impossible to escape the uncertainty on this point, which should be enough for a justice concerned with the legitimacy of the court and public perceptions of the standing of the justices to remove himself from any of the court’s engagement with these issues.
It is striking that in his testimony, Judge Kavanaugh also states the test for the required “open-mindedness” on issues that come before the court. He told Sen. Diane Feinstein:
If a case came up where someone trying to say this is a constitutional principle, I would have a completely open mind on that because I’ve never taken a position on the Constitution on that question.
Judge Kavanaugh was correct to hold those two factors up as the standard: whether he has “taken a position” on the constitutional question and whether he would therefore be able to approach such a case with an “open mind.” It could not now be clearer that, as a result of his writings and public statements, Judge Kavanaugh cannot meet his own test of “open-mindedness.” If confirmed, Judge Kavanaugh should have to recuse himself from participation in any cases that take up these issues of presidential immunities. And it should now go without saying that any such recusal would have to cover both a president’s immunity from investigation as well as indictment and prosecution.
This is a point that needs to be pressed.
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