Bench Memos

Law & the Courts

Does Brett Kavanaugh Think ‘Trump Is Above the Law’?

President Trump announced that he would nominate Judge Brett Kavanaugh to the Supreme Court about 14 hours ago. Already the nonsense is flying.

Led by Senator Cory Booker (D., N.J.) some on the left are claiming that Trump chose Kavanaugh because he has already decided that presidents should not be sued or prosecuted while in office. One left-wing group has tweeted that Kavanaugh “thinks Trump is above the law.”

This sounded strange so . . . guess what I did? I actually read the article that supposedly supports this charge.

Kavanaugh’s remarks in late 2008 at the University of Minnesota Law School were published in the Minnesota Law Review. Guess what I discovered? That this article bears no resemblance whatsoever to the wild claims being made by Booker and his allies.

Kavanaugh’s discussion of civil suits or criminal investigations surrounding a sitting president takes up about two of the article’s 22 pages. He offered no legal conclusions whatsoever; in fact, he wrote that doing so would be “beyond the scope” of the article. Instead, he wrote that “Congress might consider a law” to defer any civil suits or criminal prosecutions while a president is in office. “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.”

Kavanaugh’s suggestion comes from his unique experience. He served as staff secretary to President George W. Bush, a position providing more insight into the president’s work and responsibilities than virtually any other. Kavanaugh’s practical conclusion was that civil suits and criminal investigations can significantly impede what the president was elected to do and, unless the president is removed by impeachment, he ought to be allowed to do that job.

If this sounds completely different than the propaganda spewing from Booker et al., that’s because it is. Kavanaugh made a suggestion that Congress consider legislation. Not a word he wrote in that article had any connection to anything he could or would conceivably do as a judge. Not. One. Word.

They say that a lie can travel halfway around the world while the truth is still putting on its pants. You can expect to see lots of such pantless — and groundless — legwork for the next two months.

Thomas Jipping is the deputy director of the Edwin Meese III Center for Legal and Judicial Studies and a senior legal fellow at the Heritage Foundation.

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