By Noah Feldman
Some Democrats and advocacy groups are saying President Donald Trump picked Judge Brett Kavanaugh as his second nominee to the U.S. Supreme Court because of Kavanaugh’s view that a president shouldn’t be indicted while in office. It’s important that not become the narrative of the Democrats’ opposition, because it can easily be refuted.
Properly understood, Kavanaugh’s expressed views actually support the opposite conclusion: that the president can be investigated and maybe even indicted unless Congress passes a law saying he can’t — which Congress has not done.
The key texts here are Kavanaugh’s 2009 article in the Minnesota Law Review and his 1998 article in the Georgetown Law Journal.
In the 2009 piece, Kavanaugh, then newly appointed as a judge, acknowledged that in the 1990s, when he was working for independent counsel Ken Starr on the Bill Clinton investigation, he thought the president should be subject to criminal investigation while in office. But, he said, after working for George W. Bush in the White House, he had come to realize that the demands of the presidency required all the president’s attention. He even implied that the Starr investigation distracted Clinton from focusing on Osama bin Laden.
Now comes the tricky part. In 2009, Kavanaugh proposed that Congress might pass a law that would protect the president from investigation and indictment while in office. That’s the part that some Democrats are focusing on now — because Kavanaugh was saying that he thought it was a bad idea to go after the president.
But from a legal and constitutional perspective, Kavanaugh wasn’t saying that the courts should find that the president shouldn’t be investigated or indicted. To the contrary. He was saying that Congress should pass a law ensuring that result, because without it, the president was open to being investigated — and maybe even indicted.
Pause to take that in. If a law by Congress is necessary to fix the problem, it follows that without such a law, it is perfectly permissible under the Constitution to investigate a sitting president, as Starr did.
Although Kavanaugh didn’t expressly say that a sitting president may constitutionally be indicted, it is a plausible implication of his article. Otherwise, there would be no pressing need for Congress to pass a law saying that he could not be. The courts could intervene and save the president from indictment.
In the 1998 article, Kavanaugh avoided taking a position on whether a sitting president can be indicted, calling it “debatable.” That’s actually a pretty strong pro-indictment view, because many, probably most constitutional scholars think a sitting president can’t be indicted.
Several implications flow from this reading of Kavanaugh’s articles.
The first is that Kavanaugh wants to be legally consistent. His Minnesota article doesn’t contradict the legal view he held as a Starr team member or what he wrote in 1998 piece, in which he advocated for changes to the independent counsel statute. He just changed his views about what would be good legislative policy. For a lawyer, that’s not a contradiction.
Kavanaugh knew from the moment he went on the U.S. Court of Appeals for the D.C. Circuit that he might be nominated to the Supreme Court someday. He was being careful in the article not to contradict himself. That’s the kind of orderly, precise thinker he is. It helps explain why everyone in the legal establishment has seen him for a decade as a likely future justice.
Another implication is that Kavanaugh shouldn’t be charged with hypocrisy for the development in his prudential view. There’s nothing wrong about realizing that the president shouldn’t be investigated after you investigated him. When Kavanaugh published his article, Bush wasn’t in office. Barack Obama was. Kavanaugh’s evolution is thus less situationally hypocritical than that of Democrats who opposed the Starr investigation and now embrace the probe by special counsel Robert Mueller.
A third implication is that Kavanaugh may not accept the late Justice Antonin Scalia’s view that the Constitution bars the appointment of an independent counsel. This is subtle, but stick with me.
In the 1998 article, Kavanaugh called for changes in the independent counsel statute, but said that having some independent counsel was useful. That means that at the time, he believed there could be a constitutional independent counsel statute.
Kavanaugh’s proposed law from 2008 also wouldn’t be strictly necessary if there were no independent counsel, because the president could protect himself from indictment. Scalia would not have needed such a law protecting the president, because he thought the Constitution did not allow for independent counsels.
Thus Kavanaugh thinks Starr’s investigation was constitutional. That, in turn, marks him as less of an executive-power extremist than Scalia.
Of course, I’m not saying that Trump knows any of this. Who knows what goes through Trump’s mind? He might easily have picked Kavanaugh because he thinks he knows what the judge thinks.
But believe me, he doesn’t. Kavanaugh has been playing legal and constitutional chess for a long time. He knows just what to say when asked about his articles. Trying to oppose him on logically backward grounds doesn’t serve anyone’s interests — certainly not Democrats’.