No, Brett Kavanaugh Won’t ‘Protect’ Donald Trump

There’s a talking point already circulating through the media: Brett Kavanaugh not only “is devoted to the presidency,” he may well have been selected to protect Donald Trump. Here’s Vox’s Ezra Klein voicing an almost conspiracy-theory level idea about Kavanaugh:

https://twitter.com/ezraklein/status/1016508908549169152

As you can see, the basis for this belief is a 2009 Minnesota Law Review article where Kavanaugh argues, based in part on his own experience working with Ken Starr as he investigated President Clinton, that “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 sexual harassment case and its criminal investigation offshoots.”

And what’s his proposed remedy? He suggested not that judges block investigations of the president but instead that Congress “consider a law exempting a President — while in office — from criminal prosecution and investigation.” He makes this proposal in the same law-review article, by the way, where he also suggests that Congress should assert greater authority over war powers, and he floats the idea of a single, six-year term for the president (an interesting idea, by the way.)

In other words, he was brainstorming policy proposals, not suggesting future legal rulings.

But that doesn’t stop Klein, or John Nichols at The Nation, or many, many other commentators from highlighting Kavanaugh’s law-review article and even implying (or stating) that it played a role in the president’s decision to select him for the Court. Nichols accuses Kavanaugh of “promoting an imperial presidency” by arguing that Congress should take the lead in disciplining a president. Kavanaugh wrote, “No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress.”

But wait. Isn’t that an argument not for an imperial presidency but for constitutionally based congressional supremacy? And isn’t Kavanaugh mirroring Alexander Hamilton’s argument in Federalist No. 69 that the president “would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law”? (Emphasis added.)

Study Kavanaugh’s jurisprudence for any length of time, and you’ll note that he’s not a devotee of the presidency. He’s a devotee of the Constitution, and the Constitution separates powers between the three branches of government. In this case, the Constitution gives the power to Congress to protect the president — it doesn’t insulate the president from criminal investigation and prosecution by its own terms. Otherwise, why suggest legislation?

And what of the other claims that Kavanaugh has been, as Garrett Epps claims in The Atlantic, “deeply shaped by the needs and mores of the executive branch”? They collapse under scrutiny as well. For example, Epps in two paragraphs explains that Kavanaugh “incline[s] toward the ‘unitary executive’ view of presidential power, which holds that Congress cannot set up federal agencies that are not under the direction and control of the president,” but Kavanaugh has also attacked the Chevron doctrine, a judicial rule that has mandated judicial deference to executive-agency interpretations of governing law.

This is inconsistent with the thesis that Kavanaugh is devoted to the presidency. Why? For the simple reason that overruling Chevron would do serious damage to the power of the presidency. It would limit executive-agency discretion, elevate the power of the judiciary, and have the follow-on consequence of effectively requiring Congress to better and more precisely craft governing statutes, rather than punting too many of the tough choices to the executive branch.

So, no, there is no consistent theme of Kavanaugh devoting himself to the presidency. The consistency is classic originalism — each branch plays its constitutionally prescribed role.

As a result, when the legislature tried to create an executive agency — such as the Consumer Financial Protection Bureau — that stripped constitutional authority from the executive, Kavanaugh voted to strike it down. But when confronted with a judicial doctrine like Chevron, he declared that “it’s an atextual invention by courts. In many ways, Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.” He also  criticized the way “Chevron encourages the Executive Branch (whichever party controls it) to be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints.”

Study Kavanaugh’s jurisprudence for any length of time, and you’ll note that he’s not a devotee of the presidency. He’s a devotee of the Constitution.

If Kavanaugh sought to elevate the presidency, the last thing he’d do is criticize Chevron, which is key to the creation of the modern, executive-run administrative state. If Kavanaugh believed the Constitution shields the president from criminal investigation, he wouldn’t have suggested legislation as a remedy for presidential distractions.

In other words, Brett Kavanaugh won’t “protect” Donald Trump. He’ll interpret the Constitution. Sometimes the president will win, and sometimes the president will lose, but if Kavanaugh’s past statements and precedents are any guide, each step of the way he’ll shove the three branches of government back into their constitutional boundaries — and that will benefit the American republic for generations after the contentious Trump presidency is but a distant memory.

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