Does Brett Kavanaugh think the president is safe from criminal charges?

"The fact that #ScotusPick Kavanuaugh (sic) believes that a president can not be charged is a Automatic Disqualification of Supreme Court Consideration Plain and Simple. "
– Alexandria Ocasio-Cortez (NY) Democratic Democrat in the House, on Twitter July 9, 2018

what Brett M. Kavanaugh, President Trump's candidate for the Supreme Court, believe that a sitting president can not be charged?

As we reported, it is a gray area of ​​the law. According to two opinions of the Office of the Legal Counsel of the Department of Justice, the President can not be charged during his tenure. But the Supreme Court has never ruled directly on this issue and only judges can settle this constitutional debate for good.

A presidential indictment being one of the possible outcomes of the investigation of Special Advisor Robert S. Mueller III, it is natural to ask how Kavanaugh could vote on this issue if it is confirmed.

Kavanaugh, a US court of appeal judge for the District of Columbia Circuit and a former secretary of staff of President George W. Bush, left a long paper trail for clues. An article he published in the Minnesota Law Review in 2009 made several general recommendations regarding the presidency and Congress. Some Democrats say that Kavanaugh has shown his hand in this article: he thinks the president can not be charged.

While it is possible that Kavanaugh has this belief, the 2009 article does not go as far as saying that. Let's take a look.

The Facts

Kavanaugh helped investigate President Bill Clinton as part of the team of independent attorney Kenneth W. Starr in the 1990s. In retrospect, Kavanaugh wrote in his 2009 article: "The nation would certainly have been better if President Clinton could focus on Osama bin Laden without being distracted by the case of sexual harassment Paula Jones and his ramifications of criminal investigation."

the argument was that the president nowadays has a lot of heavy responsibilities – wars, economic crises, the threat of terrorist attacks – and should not be encumbered by criminal investigations or accusations, or civil suits During his tenure

"I believe that the president should be exempted from certain burdens of ordinary citizenship when he is in office," wrote Kavanaugh in 2009, three years after Bush l & # 3 Appointed to the DC Circuit. "This is not something I necessarily thought of in the 1980s or 1990s. Like many Americans at that time, I thought the president should be held to assume the same obligations as we But in retrospect, this seems a mistake. "

In his 12 years on the bench, Kavanaugh wrote nearly 300 opinions, often supporting the presidential power and urging restraint on government bureaucracy, such as Michael Kranish and Ann E. Marimow of the Washington Post.

"He is a staunch supporter of the prerogative of the executive," said Stephen Vladeck, a professor of constitutional law at the University of Texas Law School at La Poste. "The question is to know where he would go in the cases that really test whether there is a limit to this theory."

Kavanaugh made other recommendations in the 2009 article, arguing that the president should have more authority over some independent agencies; that "the Senate should consider a rule ensuring that all judicial candidates receive a Senate vote within 180 days of being appointed by the Speaker"; that the President should report to Congress on certain matters involving war; and that it is worth considering moving to a single six-year term for presidents instead of a four-year term with the possibility of re-election.

But the first recommendation is that Congress pass a law that postpones civil and criminal proceedings and investigations until the president leaves office. Kavanaugh wrote that this would require an extension of the limitation period, so that the president can deal with any ongoing legal proceedings after his departure.

If the president has done something cowardly during his term, there is always dismissal.

Kavanaugh's position in this article is different from saying that the president can not be charged under the existing law. If he thinks the law already prohibits the incumbent president, as some Democrats claim, why would he call Congress to pass a law that protects the president from criminal charges?

A representative of Maloney pointed to a note in Kavanaugh's article, which says, "Even in the absence of immunity conferred by Congress, a serious constitutional question exists as to whether a president can be charged and tried during his tenure. "

This is a common point of view. As we noted, the Office of the Legal Counsel of the Department of Justice wrote two notes (in 1973 and 2000) stating that the President can not be charged – but the Supreme Court has never ruled about this question. In a previous article published in the Georgetown Law Journal in 1998, Kavanaugh wrote: "The Constitution itself seems to dictate, furthermore, that the congressional inquiry must take place in lieu of an inquiry. when the President is the subject of an inquiry In the same article, Kavanaugh later wrote: "Does the Constitution permit [199] to indict a sitting president?" (1965, p.) In 1997, the Supreme Court ruled in Clinton v. Jones that a sitting president could be prosecuted for his conduct while it was not Clinton as president could not claim the immunity of a civil suit alleging that he had committed sexual harassment while he was governor of Arkansas. Kavanaugh wrote in his 2009 article that "the Supreme Court could very well have been "It is entirely correct." He argued that Clinton's government lawyers investigating Clinton, and the judges ruling on these cases, had followed the law all along. The problem, Kavanaugh wrote, was "the law as it existed."

"I was working for Judge Starr and I believe that he was diligently and correctly discharging his difficult legal task under a very flawed legal regime," writes Kavanaugh in a note. . 19659027] Here are the key passages from his 2009 article:

"With this in mind, it would be appropriate for Congress to enact a law providing that any personal civil action against presidents, such as certain military personnel, be deferred while the president is The result obtained by the Supreme Court in Clinton v. Jones – that the presidents are not constitutionally entitled to defer civil proceedings – could have been entirely correct, which is beyond the scope of this But the court in Jones stated that Congress is free to provide a temporary postponement of civil suits while the president is in office.Conference may be wise to do so, as it does. For some members of the military, the postponement would allow the President to focus on the vital tasks for which he was elected.

"Congress should consider doing the same, with regard to criminal investigations and prosecutions of the President. In particular, the Congress could consider a law exempting a President – while he is in office – from criminal prosecutions and investigations, including interrogations by criminal prosecutors or defense lawyers. Criminal investigations aimed at or revolving around a president are inevitably politicized by their supporters and critics. As I have already written, "no attorney general or special advisor will have the credibility necessary to avoid the inevitable political accusations – whether in favor of or against the president, according to the person in charge." the survey and its results. Moreover, the indictment and trial of a sitting president would paralyze the federal government, rendering it unable to function with credibility in international or national spheres. Such a result would not serve the public interest, especially in times of financial crisis or national security.

Note that this is expressed in terms of things that Congress "should" do. Noah Feldman, a professor at Harvard Law School, wrote that Kavanaugh might say "the president may be investigated and possibly even charged unless Congress passes a law saying that he can not not." [19659031] Feldman wrote that "from a legal and constitutional point of view, Kavanaugh did not say that the courts should decide that the president should not be prosecuted or charged." "On the contrary," he writes. "He said that Congress should pass a law guaranteeing this result, because without it, the president was open to the investigation – and perhaps even charged."

Some Democrats acknowledge this aspect of Kavanaugh's writings and say that he is predisposed. to protect Mueller's Trump. "Kavanaugh has written extensively about his beliefs that an incumbent president should not be the subject of criminal investigations or civil suits – all of which ensures that he would work to protect Trump from all litigation or criminal proceedings related to the investigation of the special advisor ". Cory Booker (DN.J.) tweeted.

Kavanaugh has written extensively about his beliefs that a sitting president should not be the subject of criminal investigations or civil suits, but he assures that he would work to protect Trump from all litigation or criminal proceedings related to the investigation of the special advocate

– Senator Cory Booker (@SenBooker) July 10, 2018

The Leader of the Minority in the Senate, Charles E. Schumer (DN.Y.), said at a press conference Tuesday that Trump "chose the candidate who he said would best protect him from the Mueller investigation."

"He even argued that incumbent presidents should not face a criminal investigation – no investigation of a president," Schumer said. "Is it any wonder that President Trump chose Kavanaugh from the list of 25 [candidates] when we know he is obsessed with this investigation?"

In Nixon c. Fitzgerald A 1982 decision, the Supreme Court ruled that the President had immunity from civil suits arising from his official actions. This does not apply in criminal proceedings or investigations, or in cases involving behavior before or after the term of office of a president.

Messages left for Fallon and Ocasio-Cortez were not returned. The White House declined to comment

The Pinocchio Test

A judge who said the law should prevent the indictment of a sitting president could easily rule on this belief. Kavanaugh supports a strong executive branch, and he has had different points of view at different times about whether the presiding officer should be made to cope with court proceedings. When he was a Democrat in the White House, he thought it was a fair game. After working for a Republican president, he was out of bounds.

But Kavanaugh's articles from 1998 and 2009 do not prove that he would be willing to dismiss an indictment against Trump. Although he clearly thinks it's a bad idea to indict a sitting president, Kavanaugh never makes a decision about whether the Constitution allows it. In fact, he says that Congress should pass legislation to ensure that the president is safe from civil and criminal prosecution during his term. As Feldman writes, the 2009 Kavanaugh article may be interpreted as a signal that it could maintain a presidential indictment unless Congress changes the law

. can not "or" should not "happen, but in the legal arena, this distinction is important.Kavanaugh's views on this issue do not go as far as Fallon claimed, Maloney and Ocasio-Cortez Their tweets deserve two Pinocchios, though we were considering giving three.Thinking Kavanaugh is Trump's "Trump Card" is an extreme distortion of what he wrote

Two Pinocchios

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