Democrats, including Senate Minority Leader Chuck Schumer and Sen. Elizabeth Warren of Massachusetts, are promulgating an argument that President Donald Trump chose Circuit Court Judge Brett Kavanaugh to shield himself from special counsel Robert Mueller’s Russia investigation.
Schumer, Warren and some left-leaning media outlets including The Nation, The Washington Post and NPR point to a 2009 Minnesota law review article in which Kavanaugh advocated for Congress to pass legislation that allows presidents to postpone civil lawsuits and facing criminal prosecution until after they leave or are removed from office.
Kavanaugh — who serves on the U.S. Court of Appeals for the District of Columbia — contended that the president’s job is so all-encompassing it is not fair to him (or her) or the country to allow the chief executive to be subject to civil litigation or prosecution while in office.
“It would be appropriate for Congress to enact a statute providing that any personal civil suits against presidents, like certain members of the military, be deferred while the President is in office,” Kavanaugh wrote.
He added with regards to criminal investigations that they are so fraught with becoming political in nature, it is also best to postpone them.
“Criminal investigations targeted at or revolving around a President are inevitably politicized by both their supporters and critics,” Kavanaugh explained. “As I have written before, ‘no Attorney General or special counsel will have the necessary credibility to avoid the inevitable charges that he is politically motivated — whether in favor of the President or against him, depending on the individual leading the investigation and its results.’”
The judge argued that allowing a sitting president to be criminally prosecuted, would “cripple the federal government, rendering it unable to function,” both internationally and domestically.
Kavanaugh pointed out that the Constitution provides the proper remedy for a president believed to be guilty of wrongdoing: impeachment.
“If the President does something dastardly, the impeachment process is available,” he wrote. “In short, the Constitution establishes a clear mechanism to deter executive malfeasance; we should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions.”
In his article, Kavanaugh recounted his advocacy for Congress to pass legislation shielding the president is based on his experience as a member Independent Counsel Ken Starr’s legal team in the 1990s, as well as serving on George W. Bush’s White House staff the following decade.
Starr was commissioned by Congress to investigate White Water allegations against then President Bill Clinton. The investigation later expanded to include charges of perjury against Clinton in relation to a sexual harassment civil suit brought by Paula Jones.
Clinton was ultimately impeached by the House of Representatives, but the Senate voted not to convict.
Kavanaugh wrote that, looking back, it would have been better for the country if Clinton was not subject to the independent counsel investigation.
At a media availability on Tuesday, Schumer accused Trump of choosing Kavanaugh in order to “protect (himself) from the Mueller investigation.”
The minority leader continued, “Not only did Mr. Kavanaugh say the president should not be subpoenaed, he said a president should not be investigated. Mr. Kavanaugh, is the president above the law?”
In an interview on MSNBC, Schumer further stated, “He has said the president shouldn’t be investigated. How is he going to react if Mueller needs a subpoena, if Mueller needs some other action?”
Similarly, Warren tweeted on Tuesday that Kavanaugh is there to “protect (Trump’s) back if he gets into serious criminal trouble. Not on my watch.”
But is this true? Did Kavanaugh really say that the president is above the law?
In fact, here’s what he did say in the same article:
“One might raise at least two important critiques of these ideas. The first is that no one is above the law in our system of government. I strongly agree with that principle. But it is not ultimately a persuasive criticism of these suggestions. The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office.”
Here, in his own words, Kavanaugh specifically says that the president is not above the law.
Schumer and Warren apparently are looking to the hypothetical scenario in which Mueller would either subpoena or even criminally indict Trump, and the president would refuse to comply.
The Supreme Court has never ruled on the matter of whether a sitting president can be criminally prosecuted, but the Justice Department has issued legal opinion memos (during the presidencies of Richard Nixon and Bill Clinton) determining the chief executive cannot.
In May, Trump’s personal attorney Rudy Giuliani told CNN that Mueller’s team acknowledged it “can’t indict” the president.
Rudy Giuliani tells @FoxNews that Robert Mueller told @realDonaldTrump legal team two weeks ago that he will abide by DOJ guidelines that a President cannot be indicted. Giuliani said Mueller has no choice but to honor a 1999 Clinton-era memo
— John Roberts (@johnrobertsFox) May 16, 2018
Deputy Attorney General Rod Rosenstein acknowledged that same month that the “Department of Justice has in the past, when the issue arose, has opined that a sitting president cannot be indicted.”
If the matter ever came before the Supreme Court, Kavanaugh would be one of nine justices ruling on it.
Since he was advocating for Congress to change the law, it is not clear how he would rule on the matter based on current law, or if his would be the deciding vote, or if Justice Anthony Kennedy, who Kavanaugh would replace, would have ruled differently.
Therefore, it seems Schumer and Warren’s argument that Trump is trying to protect himself and be “above the law” by choosing Kavanaugh is tenuous at best.
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