In 2009 Judge Brett Kavanaugh, then on the U.S. Court of Appeals for the D.C. Circuit for about three years, wrote a law journal article for the Minnesota Law Review that has become the subject of intense public scrutiny since he was named as Trump’s choice to succeed Justice Kennedy on the U.S. Supreme Court, subject to confirmation by the U.S. Senate. Even before the recent indictment of the twelve Russians and Trump’s claims that it is all the fault of Mueller the attention to that article is very appropriate and prudent. The title of the article, which immediately follows, sums up its message very succinctly.
“PROVIDE SITTING PRESIDENTS WITH A TEMPORARY DEFERRAL OF CIVIL SUITS AND OF CRIMINAL PROSECUTIONS AND INVESTIGATIONS”
He states that he was Staff Secretary to President Bush for three years. Based on that experience he writes that the job of president is far more difficult than any other civilian job in government and sets out the reasons for that opinion. He goes on to say that is a reason the president should be excused from some of the burdens of citizenship while in office. An example he uses to support this proposal is his claim that the nation would have been better served if Clinton had been free to focus on Osama Bin Laden without the distraction of the Paula Jones case and the resulting criminal investigation. He argues that it would be appropriate for Congress to enact a statute similar to the Service Members Civil Relief Act which empowers service members to delay responding to a civil lawsuit so long as they are on active duty. Significantly and unsurprisingly he fails to offer evidence or assert specific examples of Clinton being distracted from the actions of Osama Bin Laden by the Paula Jones matter.
He correctly observes that there is in the legal community a serious doubt that a president is subject to a criminal prosecution while in office. In fact the U.S. Department of Justice has a written policy to that effect. One of the most highly publicized examples of that policy was the multiple count, multiple defendant Watergate indictment that named Nixon as an unindicted co-conspirator.
Which brings us to what I believe is the most problematic and superficially analyzed argument in this section of the article, which is , to quote him ” Congress might consider a law exempting a president-while on office-from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel” (emphasis supplied). The Watergate prosecutions provide a good example of the serious problems with that proposal. If Judge Kavanaugh’s proposals were the law at the time of Watergate could counsel have even been appointed to investigate the Watergate break in if any part of that investigation could involve Nixon’s responsibility for the break in or the resulting cover up. We know today that the coverup investigation could not have proceeded if such a law had been in place because Nixon was one of the co-conspirators.
Suppose at some time in the near future, after such a statute had become law, the attorney for a defendant under indictment, or just under investigation, wanted to take the deposition of the president in preparation for for the defense of his client. He could not do it without the president’s consent. Would the president consent if he knew or feared that honest answers might expose him to impeachment? Would the indicted or merely investigated subject have a right to defer the investigation or prosecution for the remainder of the president’s term?
These are the kinds of complex issues that are usually addressed in law review articles. Unfortunately they were only raised in this one. In apparent anticipation of this concern Judge Kavanaugh described his goal as a modest effort to identify problems worthy of additional attention and sketch out some possible solutions and call for further discussions. I am not aware that his call has been answered. I think the problems that would be created by his proposed solutions are significantly greater than the problems he seeks to address. It seems to me if he believes he has identified problems he should address the issues his solutions would create, if he recognizes them.
Hoosier Pamphleteer 