Yes, the judicial-confirmation silly season surely is upon us.
In 2009, Brett Kavanaugh wrote the following words in a characteristically well-reasoned article for the Minnesota Law Review: “No one is above the law in our system of government. I strongly agree with that principle.”
It is based on this article that Senate Democrats claim— I kid you not — that President Trump’s nominee is unfit to serve on the Supreme Court because he believes the president is above the law.
This is so barmy it is difficult to know where to start. I do have a suggestion, though, about where not to start. In rebuttal, Kavanaugh supporters have been quick to remind us that the judge served as a prosecutor on Independent Counsel Kenneth Starr’s staff in the criminal investigation of President Clinton. This, they say, makes it self-evidently silly to say that Kavanaugh is against such investigations.
To the contrary, Kavanaugh’s article (only a small part of which deals with this topic) is a reflection on lessons learned from his experience not only in the Starr investigation but also as a staffer in the Bush White House. He observed the grind up close, the relentless pressures and constant life-and-death decision-making that makes the presidency like no other office. Having been seasoned by that experience, he now believes “in retrospect” that it “seems a mistake” to take a doctrinaire position that presidents should be treated like any other person when their duties are unlike any other person’s — and when we routinely make accommodations for persons with far less consequential duties.
Ever the constitutionalist, Kavanaugh points out that our system’s principal check on presidential misconduct is impeachment. We have made this point any number of times in the course of the investigation being conducted by Special Counsel Robert Mueller. The Constitution, Kavanaugh observes, “assigns to the Congress” the power to address law-breaking by the chief executive; it is not a power to be wielded by any single prosecutor or jury. This, too, is clear. As we’ve repeatedly noted, prosecution in our system is an executive power. Special Counsel Mueller, for example, is technically an inferior executive officer who — like every other executive-branch subordinate — answers to the president. President Trump has abided Mueller’s investigation because it would be cataclysmic politically to do otherwise; legally, however, he could fire Mueller at any time. The Framers were not so naïve as to bequeath us a system in which the president was in charge of checking the president.
As Kavanaugh is quick to add, the vesting of impeachment power in Congress does not render the president beyond the reach of the law. The Constitution expressly provides that an impeached president would still be subject to prosecution. What is at issue is the matter of timing: It is a question of when the president should be liable to indictment or, for that matter, civil suit; it is not a question of whether he should.
On that subject, the Democrats’ pearl-clutching would be hilarious if it weren’t so cynical. Without offering a concrete proposal in his law-review article, Kavanaugh suggested that Congress should consider legislation that would delay the prosecution of a president until after he is out of office. Ah-hah! Democrats exclaim: Trump has nominated Kavanaugh in order to insulate himself from Mueller!
Dream on. What the Kavanaugh article suggests is that Congress consider enacting by legislation what we are already doing in accordance with longstanding policy.
Under existing Justice Department guidance, a sitting president may not be indicted. That policy binds Special Counsel Mueller. The president may be impeached, but courtroom prosecution must await his exit from office. Essentially, Kavanaugh is saying that Congress should think about codifying in statutory law the procedure drawn from internal Justice Department rules that we have been following for, oh, the last half-century or so. And to repeat, the point would be to delay the proceedings, not to prevent them.
Delaying indictment and trial is a routine matter for defendants in the criminal-justice system. To take the most obvious example, the statute of limitations permits prosecutors to delay the filing of charges for years (five years for most federal crimes), enabling them to indict at the time most expedient for them — there has never been a requirement that charges be filed the moment a crime can be proved.
Moreover, the Speedy Trial Act, which applies to every criminal defendant in the federal system, provides for delaying trial in an indicted case based on numerous rationales that are orders of magnitude less consequential than the duties of the presidency. (See Section 3161(h) of the penal code, permitting delay for, among other things, investigations of mental competency, the filing of pretrial motions, other trials and appeals, unavailability of important witnesses, complexity of the case, and the judge’s finding that delay would prevent a miscarriage of justice.) Furthermore, in the civil-law realm, Congress has enacted laws granting delays in legal proceedings to members of the armed forces on active duty. Is it really unreasonable to suggest that the commander-in-chief might rate similar treatment?
Furthermore, notice that we are talking about delays enacted by Congress. Kavanaugh could not be more clear that it would be for Congress to decide whether a president should be protected from suit while in office. He presumes that the Supreme Court correctly decided (in Clinton v. Jones) that the Constitution provides the president with no protection from lawsuits. Translation: He does not believe the courts have the power to invent such protection. Either Congress legislates it or it doesn’t happen.
Of course, it is absurd for Democrats to suggest that a single Supreme Court justice has the power to insulate a president from being sued or indicted. Kavanaugh, by contrast, correctly presumes that no judge or court has this power.
The judge’s critics are especially exercised by the article’s suggestion that Congress consider delaying not only prosecutions but criminal investigations of the president. Not surprisingly, there is less here than meets the eye.
Kavanaugh is plainly not saying that the president should not be investigated at all. Indeed, he emphasizes that the president may be impeached for serious misconduct, and that the president may be indicted forthwith upon leaving office. As a practical matter, these things cannot be done absent an investigation. When the judge proposes shielding an incumbent president from investigation, he is clearly referring to those aspects of a criminal probe that require the dedicated attention of a suspect — particularly, “questioning by criminal prosecutors or defense counsel.”
Judge Kavanaugh patently does not believe the president is above the law; nor does he believe that the judiciary is empowered to insulate the president from lawsuits, indictments, or investigations.
Again, Kavanaugh does not offer a developed proposal for delaying proceedings; this is a fleeting treatment of a complicated topic in an article that is primarily about other things. But his article does not suggest that prosecutors, in a probe involving the president, should be barred from taking rudimentary investigative steps — convening a grand jury, interviewing witnesses, issuing subpoenas for documents and other physical evidence, etc. — that may affect a suspect’s case but do not involve making personal demands on him (e.g., coercing his testimony or production of evidence).
This is an entirely reasonable position. We have observed here on several occasions that prosecutors are not at liberty, just because they think it could be relevant or interesting, to subpoena a president for testimony or physical evidence. Because the chief executive has a legally recognized privilege, the prosecutor should not be permitted to issue a subpoena absent showing that the president is implicated in a serious crime and is the repository of evidence or information that the prosecutor cannot obtain from any other source.
This is not just common sense; it is a sensibility we vindicate in other constitutionally important contexts. Prosecutors, for example, may not willy-nilly subpoena journalists. Even though the First Amendment does not confer confidentiality on communications between reporters and sources, the Justice Department rigorously enforces guidelines that prohibit prosecutors from inquiring into them in most situations. Similarly, to protect the attorney-client privilege, the Justice Department requires investigators to jump through various hoops before seeking information that is clearly not privileged (e.g., the fact of the attorney-client relationship, the fees paid, communications not related to legal advice or in furtherance of fraud).
To sum up, Judge Kavanaugh patently does not believe the president is above the law; nor does he believe that the judiciary is empowered to insulate the president from lawsuits, indictments, or investigations. He correctly argues that the Constitution’s main check against presidential law-breaking is Congress’s impeachment power; in addition, he observes that it is for Congress to determine whether the president should receive any protection from civil or criminal proceedings. To maintain our system in which no one, including the president, is above the law, any such protections would involve delaying proceedings during the pendency of the presidency, not granting immunity from them. And to the extent Kavanaugh endorses such delays, it is completely in keeping with current, longstanding policy, which prevents sitting presidents from being indicted and which accommodates delays in countless contexts that involve concerns far less weighty than the chief executive’s responsibilities.