A Future Justice Kavanaugh and Executive Privilege

If a prosecutor one day decided to indict President Donald Trump, a future Justice Brett Kavanaugh might not be the one to stop it.

Media reports, like this one over at the Washington Post, or this take over at Vox, concerning Kavanaugh’s views on executive power are too quick to assume that he would shield the executive branch during criminal investigations. His writings paint a very different portrait.

Kavanaugh, currently a judge on the District of Columbia Circuit, is a widely discussed candidate to replace Justice Anthony Kennedy on the United States Supreme Court. Kavanaugh has worked extensively in the White House for President George W. Bush. That might lead one to believe that he has a strong view of executive power. But it’s an earlier career experience that may have shaped Kavanaugh’s views, and they are not views that tend to defer to executive power.

To be sure, the media is right on one thing: Kavanaugh has written that criminal investigations of the president can be distractions and should be circumscribed. In other areas, however, Kavanaugh has advocated for breadth in the power to investigate the president, particularly when it comes to denying to the president claims of privilege.

In 1998, Kavanaugh wrote an article for the Georgetown Law Journal on investigations surrounding the president. He lamented, “One major cause of delay in independent counsel investigations has been the repeated assertion of various executive privileges.” He proposed that Congress enact a 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.”

Kavanaugh’s views were developed at a time when he worked for independent counsel Ken Starr during the investigation of President Bill Clinton. And these views are consistent with his work as an advocate.

For instance, Kavanaugh unsuccessfully argued Swidler & Berlin v. United States before the Supreme Court in 1998. He urged the Court to permit access to those statements made by Deputy White House Counsel Vincent Foster prior to his death. The Court held that the attorney-client privilege protected his statements even after his death. Kavanaugh also argued In re Lindsey, in which the D.C. Circuit agreed that an attorney in the Office of the President in the Clinton White House could be compelled to testify in a criminal investigation.

One might discount Kavanaugh’s arguments in his role as advocate. But we have an unusual alignment between his academic work and his advocacy—he tended to disapprove of claims of executive privilege in both.

Importantly, federal law reserves to the federal court judges a common law role in fashioning evidentiary privileges. A Justice Kavanaugh would likely hold a dim view of executive privilege.

And while Kavanaugh has expressed that he is personally opposed to indicting a sitting president, he has been quite open to the prospect that the Constitution permits it. In his Georgetown Law Journal piece, Kavanaugh wondered whether the Constitution permitted a prosecutor to indict a sitting president. His answer? Maybe. In his view, the matter was “debatable.”

Kavanaugh offered little exploration of the text or structure of the Constitution, but he cited statements of modern special prosecutors and of Alexander Hamilton. He also described practical problems indicting a sitting president. Nevertheless, there was enough doubt in Kavanaugh’s mind about the text of the Constitution that he urged Congress to pass a statute to prohibit a prosecutor from indicting a president until he leaves office. That leaves open the possibility that, in Kavanaugh’s judgment, the Constitution permits indicting a sitting president.

In a 2009 piece in the Minnesota Law Review, Kavanaugh held fast to these views: “Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation,” he wrote. He then qualified that “a serious constitutional question exists” as to whether a sitting president could be indicted.

Again, the Starr investigation may have helped shape Kavanaugh’s views. In 1998, the late Professor Ron Rotunda wrote an extensive memo to Starr explaining why, in his view, the Constitution permitted a sitting president to face criminal indictment.

If a prosecutor did indict President Trump, his challenge brought to the Supreme Court would not necessarily receive the support of a future Justice Kavanaugh. Kavanaugh might find the Constitution permits the indictment. Or, he could conclude it doesn’t—it remains an open question.

It’s a mistake for those on the political left to monolithically oppose every name on President Trump’s list of prospective Supreme Court nominees. Candidates have divergent views on a variety of topics. Kavanaugh’s own writing reflects nuance when it comes to executive power, including views that many Democrats may be inclined to support (at least for today).

In the event criminal investigations of President Trump persist and that the investigation of Robert Mueller extends deep into the Trump administration, a future Justice Kavanaugh, if nominated and confirmed, may be an unlikely ally of many of those who oppose him today.

Reader Discussion

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on July 03, 2018 at 14:38:56 pm

Interesting if speculative curiosity piece.

I would like to believe that no one in Congress except OCD Maxine Waters and no one in the Senate is actually considering, even casually, how a nominee would vote on the indictability of Trump. But I know my hope asks way too much of the 49 poltroons who make up the Democrat wing of the Unites States Senate.

Of clear political significance on Kavanaugh is his crypto-support of Obamacare which was masqueraded as a dissent (based on the Anti-Injunction Act) in the DC Circuit's vote approving that law, a move which, once publicized, may make Kavanaugh tolerable to some Senate Democrats while rendering him anathema both to numerous conservative Senate Republicans (already leery of John Roberts for that very reason) and to Trump and, thus, destroying Kavanaugh's chances of being nominated.

Ironically, Senate Democrats and their media allies would convert what is clear speculation, that Kavanaugh would vote to sustain the President's indictment, into the "real" reason that the White House rejected him. Whereas, the White House would have dismissed Kavanaugh because of his troublesome Obamacare vote on the DC Circuit.

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Pukka Luftmensch
on July 03, 2018 at 16:26:05 pm


Here is a slightly different take on Judge Kavanaugh (from todays NRO): (n.b: Scalia's comment's on Kavanaugh's purported *support* of O-SNARE!!!)


"Speaking of Obamacare, I know how disappointed social conservatives were by the Supreme Court’s unprincipled decision to uphold that law. Judge Kavanaugh dissented from a court-of-appeals decision upholding Obamacare. He called the individual mandate “unprecedented on the federal level in American history” and said that upholding it would “usher in a significant expansion of congressional authority with no obvious principled limit.” He also explained that “no court to reach the merits has accepted the Government’s Taxing clause argument” and that the taxing clause “has not traditionally authorized a legal prohibition or mandate.” Although he ultimately determined that a challenge to Obamacare had to be brought later, he left no doubt about where he stood. No other contender on President Trump’s list is on record so vigorously criticizing the law. And as another of Judge Kavanaugh’s former law clerks has explained in depth, any suggestion that his decision paved the way for the Supreme Court’s disastrous ruling is, as Justice Scalia would later put it in an Obamacare dissent, “pure applesauce.” The Supreme Court Justices who followed Judge Kavanaugh in the Obamacare case were the dissenters, Justices Scalia, Thomas, Alito, and Kennedy."

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on July 03, 2018 at 16:26:23 pm

"If a prosecutor did indict President Trump, his challenge brought to the Supreme Court would not necessarily receive the support of a future Justice Kavanaugh. Kavanaugh might find the Constitution permits the indictment. Or, he could conclude it doesn’t—it remains an open question."

I refuse to trust this. Donald Trump has made no secret of his continuing rage at Jeff Sessions for failing to see himself as Trump's personal lawyer. He praised Eric Holder for seeming, in Trump's mind - to do just that for Barack Obama, even comparing him to Trump's dead buddy, Roy Cohn. He is widely reported - and with no contradictions - to have demanded to whoever was in the room "Where is MY Roy Cohn?"

We also know that one of the principal reasons he fired Comey was that, when he demanded an oath of personal loyalty to himself instead of to the Constitution, Comey didn't give him one.

With no one in the room when he interviewed Kavanaugh, he certainly could have and - given his unbroken history of personal corruption - very likely DID demand such a private pledge of personal loyalty as a condition of putting Kavanaugh on his short list.

Whether or not he did attempt to extract such a pledge, and whether or not Kavanaugh gave it, AN Y nominee selected by a man openly obsessed with being able to escape justice would always be under a cloud of suspicion. He would remain under that cloud until and unless he agreed in an actual case that a sitting President could be indicted, and also rejected any power of a President to pardon himself.

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Rob Benjamin
on July 03, 2018 at 17:37:12 pm

Thanks for the brief NR article by a former Kavanaugh law clerk which I had not read. Just after posting my comment I also read a Federalist article to the same effect written by another former Kavanaugh law clerk. So clearly there is a Kavanaugh counter-offensive underway, as there should be if there is doubt as to his Obamacare dissent.

I have not re-read Kavanaugh's Obamacare dissent in the DC Circuit, but did read it in 2011. However, I must admit that at the time I was much more focused on/ disturbed by Judge Silberman's surprising vote/majority opinion sustaining the individual mandate. BTW, the case is Seven Sky v. Holder. I am a little skeptical of today's counter-offensive by Judge Kavanaugh's clerks, think maybe Kavanaugh in 2011 saw Obamacare's mandate penalty as a legitimate tax (like Roberts) but wanted to get out on jurisdictional grounds, through the Anti-Injunction Act route, which Roberts later swept aside.

But, in fairness to Kavanaugh (as if my opinion matters,) I will re-read his dissent, and I may alter my tentative opinion against to a less-tentative opinion for Kavanaugh.

But my real fav is Judge Amy Barrett, for solid reasons: my wonderful great aunt was named Amy, a woman I dearly loved and name I love ("Once in love with Amy";) Judge Barrett is NOT from an Ivy League law school, she's Catholic a faith toward which ( like lots of British writers I admire) I have gravitated late in life; she raised 7 kids (I love children and think large families a national blessing) while building a stellar career (how many men can say that?,) and she'll vote to overturn Roe and Casey for sure and maybe she'll vote to junk Obergefell, too, all of which were wrongly decided, are devoid of constitutional basis and will always be grossly immoral, akin to Dredd Scott in their political and social repugnance.

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Pukka Luftmensch
on July 04, 2018 at 09:51:17 am

Wow! Jaded as I've become after decades of politics Chicago/DC style (and I lived in Chicago for 6 years when Richard "Duh Mayor" Daley was king and in DC for nearly 5 decades, including the years of Marion Barry and the Watergate era) I just can't accept the utter cynicism of Rob Benjamin's comment. It seems posited on the premise that federal political, judicial and prosecutorial corruption are not just occasional if recurring phenomena, but rather are so pervasive and ubiquitous as to be omnipresent, routine and ordinary.

I think that the perception of commonplace legal corruption in the federal government is a myth, a falsehood that one ought not perpetuate unless he can produce systematic data, not merely heated press stories and episodic cases (like Watergate, Enron and Russiagate) to support it.

And the data we have, at least as to the allegation of federal prosecutorial abuse, contradicts the myth that DOJ
abuse is widespread and, indeed, shows it to be a rare phenomenon. Here is the abstract of a current law review analysis which supports my assertion. The article can be downloaded from the abstract:

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Pukka Luftmensch
on July 04, 2018 at 20:27:22 pm

Trump is a nothing short of a con man, a bully and a pawn for so-called Christians who self-servingly conflate morality with their particular religious beliefs. Trump is the very essence of a false prophet. Why more educated people don’t see this (or choose to overlook this) is frightening, True Christians should be very concerned lest we continue to be portrayed (realistically I’m afraid) as hypocrites. A vast majority of states will preserve women’s health rights as well as the legitimacy of same-sex civil marriages. Don’t think for a second that Trump hasn’t or wouldn’t have a mistress abort her unborn child to preserve his pious persona.

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on July 05, 2018 at 07:52:29 am

So, Don, can we count you as a Never-Trump guy?

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Pukka Luftmensch
on July 05, 2018 at 09:36:20 am

I’m a “First Do No Harm” guy and a “Speak No Evil” guy who believes in the sanctity of the law and the wisdom of stare decisis.
I will side with the marginalized, oppressed and stigmatized over the privileged and powerful when deceit and injustice is clear and compelling. That’s what Jesus would do. I have no doubt that God is much more of a flexible thinker than simple men and women give him credit for and that compassion and empathy will prevail over cruelty, vengeance and self-righteous indignation.

There’s a reason why the Puritan immigrants were basicallly forced to come to the New World. If we’re not careful, that phenomenon may happen again sooner than we think. No one religious belief system should predominate. Every religion thinks it’s the one true or best way of being in the world. We are not an autocratically run theocracy nor should we ever be.

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on July 05, 2018 at 11:55:46 am

"We are not an autocratically run theocracy nor should we ever be."

Hmmm! Well, maybe?

Yesterdays news brings us the following headline: (paraphrase here)

Facebook deletes sections of the Declaration of Independence for failure to meet *ITS* community standards.

Seems like we may have a theocracy, after all.

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Guttenburgs Press and Brewery
on July 05, 2018 at 12:00:13 pm

Don, is your last name Rickles? 'cause you're a riot:)

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Pukka Luftmensch
on July 05, 2018 at 19:23:16 pm

Huh? Computers screening documents for terms that disparage racial groups or other groups whose qualities are immutable is hardly a theocracy. I’m guessing Fox News (unlike every other legitimate news source in the world) neglected to report this part:

The removal of the post was an automated action," Stinnett wrote. "If any human being working at Facebook were to review it, no doubt the post would be allowed."

A Facebook spokesperson told CNN that "the post was removed by mistake and restored as soon as we looked into it. We process millions of reports each week, and sometimes we get things wrong."

A theocracy thinks it’s *ALWAYS* right and infallible and doesn’t care who it insults, berates, threatens or offends to impose its beliefs. Autocrats never say they’re sorry (see Trump).

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on July 07, 2018 at 20:36:25 pm

As promised I did follow up in order to read Kavenaugh's DC Circuit dissent in the Obamacare decision, wherein he opined that the court should decline jurisdiction b/c of the Ant-Injunction Act and the prospect that the mandate penalty was a tax. Kavenaugh's language is guardedly supportive of the prospects of the penalty being declared a tax, albeit he does state that there are problems with that conclusion (which he does not reach in his dissent, limiting himself to the assertion that the court lacks jurisdiction.) Similarly, he has loose language re the possible constitutionality of the law under the IC Clause (which the DC Circuit did endorse.)
Bottom line: I distrust Kavenaugh, think he may be too Roberts-like and am worried that he rose through DC political contacts (which means the Republican Establishment) making him, more or less, part of the Swamp. Better a fresh face from outside the Swamp and its incestuous network. And the freshest face I can think of among the main contenders is Amy Barrett. Lots of great reasons to nominate her.

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Pukka Luftmensch
on July 07, 2018 at 20:49:38 pm

One additional thought re Kavanugh: he's a W Bush appointee and Bush didn't do such a good job in his nominees. I've followed some of his picks in the Circuit and District Courts and, as you might expect, their records are not all that solid on originalism. The Fourth Circuit ruled in favor of Obamacare with W Bush appointees supporting the vote. Some of the travel ban decisions at the district and Circuit levels went against Trump with support of Bush appointees. Of course there are numerous exceptions. But if in doubt, their history of terrible vetting of their SCOTUS nominees should have taught Republicans of the necessity of proceeding with extreme caution. W. Bush's appointments of Roberts, for example, I fear will turn out a mistake, though Alito is rock solid.

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Pukka Luftmensch
on July 10, 2018 at 11:11:39 am

Wickard v. Filburn leads the pack in decisions "devoid of constitutional basis"

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on August 01, 2018 at 02:38:56 am

Yes. If Kavanugh fails, my first choice is the best choice - Amy. One can discern a champion by the battles they win in their private life. Raising seven children is an epic endeavor that very few can rightly comprehend. She did well, and is brilliant in the law. A champion without peer among the several excellent prospective or potential nominees.

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Jerry W Davis

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.