Trump Supreme Court pick Brett Kavanaugh is a big supporter of executive power who favors shielding presidents from investigations

Key Points
  • Brett Kavanaugh, the federal appeals judge nominated by President Donald Trump for the Supreme Court, has a track record of strongly supporting executive power.
  • He has called for sitting presidents to be temporarily shielded from criminal investigations and civil lawsuits while in office.
  • Kavanaugh was an assistant to independent counsel Kenneth Starr during the investigation of President Bill Clinton and Clinton's lying about an affair with Monica Lewinsky.
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Brett Kavanaugh, the federal appeals judge nominated by President Donald Trump for a seat on the Supreme Court, has a track record of strongly supporting executive power, which includes calling for sitting presidents to be shielded from criminal investigations and civil lawsuits while they are in office.

Critics of the president say Kavanaugh's stances on executive power helped his standing with Trump, although the president himself didn't cite the judge's positions when he explained his rationale for picking him Monday night. Trump faces pending civil lawsuits and an ongoing criminal probe of members of his presidential campaign by special counsel Robert Mueller, who wants to question him.

Kavanaugh's record of deferring to presidential power, which includes suggesting that a president should not be constrained while in office by the responsibilities of "ordinary citizenship," is hardening resistance among Democratic senators to Kavanaugh's appointment.

"I will oppose this nominee with everything I got," said Senate Minority Leader Chuck Schumer, D-N.Y., on MSNBC's "Morning Joe" show on Tuesday, adding he is "worried about President Trump's overreach."

Schumer later told reporters on Capitol Hill: "Why was Kavanaugh chosen? Because the thing the president is most obsessed with is the Mueller investigation, and Kavanaugh is strongest against such an investigation."

"The strongest in believing the president, even if he thinks the law is unconstitutional, doesn't have to obey it," Schumer said. "That's so far out of the mainstream, but it’s just what President Trump, who would roll over our democracy in ways we've never seen, would want."

Kavanaugh and the Clinton impeachment

Ironically, one situation that Kavanaugh has said deeply influenced his belief in shielding a sitting president from having to deal with a pending criminal probe or prosecution, or a civil lawsuit, was his involvement as an assistant to independent counsel Kenneth Starr during his investigation of President Bill Clinton in the late 1990s.

The impeachment of Clinton — who was acquitted after trial in the Senate — came after the Supreme Court ruled he could questioned by lawyers for an Arkansas state employee, Paula Jones, whose lawsuit against Clinton claimed that he had exposed himself to her years before.

Clinton's lying under oath during that questioning, in which he falsely denied having a sexual relationship with White House intern Monica Lewinsky, led to Starr investigating the president for perjury. He then issued a report that in turn led to his impeachment by the House of Representatives.

Kavanaugh mentioned that case, along with his tenure as staff secretary to President George W. Bush, in a Minnesota Law Review article in 2009, as he wrote about how difficult the job of being president can be. In that article, he said he had come to realize it "was a mistake" to have believed, as he once did in the 1990s, that a president should be "one of us" who bears the same responsibilities of citizenship that all share.

White House officials reportedly reviewed that article before Kavanaugh was nominated.

"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 cases and its criminal offshoots," he wrote in the article, referring to the terrorist attacks of Sept. 11, 2001.

"I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible," Kavanaugh wrote.

To that end he wrote that "it would be appropriate for Congress" to pass a law that would defer any personal civil suits against presidents, along with also deferring "criminal investigations and prosecutions of Presidents," while they are in office.

Kavanaugh also suggested that Congress exempt a sitting president from being questioned by either criminal prosecutors or defense attorneys while in office.

Impeachment over prosecution

The danger of not shielding a president from criminal prosecution is extremely high, he warned.

"The indictment and trial of a sitting President, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas," Kavanaugh wrote. "Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.”

He noted that a president could face prosecution after leaving office, and that another method of dealing with a criminal presidential is contained in the Constitution.

And, "If the President does something dastardly, the impeachment process is available," Kavanaugh wrote. But, he added, "No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress."

That said, Kavanaugh did not suggest in the article that the Supreme Court erred, legally speaking, in ruling that Clinton could be questioned by Jones' lawyers. He wrote that that decision "may well have been entirely correct."

On the separation of powers

Earlier this year, Kavanaugh wrote a dissent in a case that underscored his belief in strong executive powers. That case involved a challenge to a law barring the president from removing the director of the Consumer Financial Protection Bureau from office unless the director was inefficient, neglectful of duty or engaged in malfeasance in office.

The U.S. Circuit of Appeals for the District of Columbia upheld that law.

Kavanaugh, in his dissent, wrote that the Constitution's framers, "to prevent tyranny and protect individual liberty separated the executive, legislative and judicial powers of government."

"The framers lodged full responsibility for the executive power in a president of the United States, who is elected by and accountable to the people," he wrote.

Kavanaugh also wrote that the single-director structure of the CFPB, along with the restriction on the director's removal by the president, "threatens individual liberty and diminishes the President's Article II [of the Constitution] authority to exercise the executive power."