Bench Memos

Law & the Courts

Schumer and Durbin’s Baseless Attacks on Kavanaugh on Subpoenas and Investigations

Wow, the Democrats really have no ammunition.

Senator Schumer asserts, on the basis of nothing, that President Trump nominated Judge Brett Kavanaugh because he is “worried” about the Mueller investigation and “knows that Kavanaugh will be a barrier to preventing that investigation” from successfully subpoenaing him.

But Kavanaugh has supported the proposition that a president may be subpoenaed. Specifically, he has supported, and indeed proposed that Congress codify, the legal rule that “the President may not maintain any executive privilege, other than a national security privilege, in response to a grand jury or criminal trial subpoena sought by the United States.” Such a rule, he says, “strikes the appropriate balance between the need of federal law enforcement to conduct a thorough investigation and the need of the President for confidential discussions and advice.” (See pp. 2137-2138 of his law-review article, “The President and the Independent Counsel.”)

Senator Durbin insinuates that Trump selected Kavanaugh because Kavanaugh “is on record saying the president should not be distracted with criminal investigations and prosecutions [while] he’s in office.” (The quotes from Schumer and Durbin come from this article in The Hill.)

It should be no great surprise that the position that “the president should not be distracted with criminal investigations and prosecutions” is widely held. Indeed, that’s what DOJ’s Office of Legal Counsel under President Clinton concluded in a formal opinion: “The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.” As Noah Feldman observes (in his refutation of attacks on Kavanaugh’s position), “many, probably most constitutional scholars think a sitting president can’t be indicted.”

Kavanaugh has not remotely suggested that a president should escape accountability while in office. On the contrary, in this article in which he proposes a legislative solution to the problem posed by “criminal investigations and prosecutions of the President,” he emphasizes that the impeachment process “is available” for “dastardly” conduct. And as he discusses, Watergate special prosecutor Leon Jaworski likewise concluded that it would be irresponsible to seek an indictment against a sitting president: impeachment is the preferred option, Jaworski concluded, based in part on his staff’s warning that an indictment would “cripple [the president’s] ability to function effectively in the domestic and foreign fields as the Nation’s Chief Executive Officer.” (“The President and the Independent Counsel,” p. 2158.)

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