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Kavanaugh Gives His Thoughts on Whether or Not a Sitting President Can Be Indicted

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Supreme Court nominee Brett Kavanaugh told the Senate Judiciary Committee that he does not believe the Constitution insulates a sitting president from criminal indictment or investigation.

The question, asked by Democratic Sen. Dianne Feinstein of California, arises from Kavanaugh’s past writings and statements, including a journal article for the Minnesota Law Review arguing that Congress should enact legislation exempting a sitting president from criminal prosecutions, civil suits, and other investigations.

“They were ideas for Congress to consider,” Kavanaugh said of his law review article. “They were not my constitutional views.”

He declined, however, to engage when Feinstein asked whether a sitting president should be bound by a subpoena, a question which the Supreme Court has never decided.

“You’re asking me to give my view on a potential hypothetical,” he said.

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The judge similarly refused to say whether a sitting president could pardon himself, in response to a question from Democratic Sen. Patrick Leahy of Vermont.  

“The question of self-pardons is something I’ve never analyzed, it’s a question I’ve not written about, and it’s a hypothetical question that I can’t begin to answer in this context as a sitting judge and as a nominee to the Supreme Court,” he said.

Kavanaugh told the committee that the positions he urged in the article reflect views he developed during his tenure in the independent counsel’s office and the Bush White House.

As an attorney for Ken Starr, Kavanaugh helped lead investigations of President Bill Clinton. He entered the Bush administration in 2001, first as associate White House counsel, and then as staff secretary. He left the executive branch in 2006 when he was confirmed to the U.S. Court of Appeals for the D.C. Circuit.

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The judge spoke in detail about Bush’s leadership as a wartime commander-in-chief, suggesting it demonstrated the importance of keeping a sitting president focused on the duties of his office, and not on outside investigations.

“President Bush said this will not happen again,” Kavanaugh said, describing Bush’s mood the day after the Sept. 11 attacks. “And he was of single-minded focus every morning for the next seven years.”

Heading off an attack from Democrats, Kavanaugh also rebutted a report that he criticized the 1974 U.S. v. Nixon decision during a 1999 panel discussion, where he wondered if “the tension of the time led to an erroneous decision.”

Kavanaugh said the remarks, which first appeared in the Associated Press, were taken out of context, and pointed to subsequent statements praising the Nixon decision in other settings.

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