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.)

Most Popular

Film & TV

A Sad Finale

Spoilers Ahead. Look, I share David’s love of Game of Thrones. But I thought the finale was largely a bust, for failings David mostly acknowledges in passing (but does not allow to dampen his ardor). The problems with the finale were largely the problems of this entire season. Characters that had been ... Read More
Politics & Policy

The Great Misdirection

The House Democrats are frustrated, very frustrated. They’ve gotten themselves entangled in procedural disputes with the Trump administration that no one particularly cares about and that might be litigated for a very long time. A Washington Post report over the weekend spelled out how stymied Democrats ... Read More
World

Australia’s Voters Reject Leftist Ideas

Hell hath no fury greater than left-wingers who lose an election in a surprise upset. Think Brexit in 2016. Think Trump’s victory the same year. Now add Australia. Conservative prime minister Scott Morrison shocked pollsters and pundits alike with his victory on Saturday, and the reaction has been brutal ... Read More
NR Webathon

We’ve Had Bill Barr’s Back

One of the more dismaying features of the national political debate lately is how casually and cynically Attorney General Bill Barr has been smeared. He is routinely compared to Roy Cohn on a cable-TV program that prides itself on assembling the most thoughtful and plugged-in political analysts and ... Read More