Taney may well deserve to be “hooted down the page of history,” but it is unfair to take Marshall and Story with him.
The “discovery” of a 2016 interview in which Judge Brett Kavanaugh said he would like to see Morrison v. Olson overturned has sent his Democratic critics in the Senate into either staged or confused apoplexy. Senate Minority Leader Chuck Schumer—who, like his fellow New Yorker in the White House, says things bigly—claimed Kavanaugh has an “almost monarchical view of executive power and accountability.” One piece of evidence for this outlandish claim is that Kavanaugh has suggested that Congress could legislate against investigations and prosecutions of sitting Presidents and implied that indicting one would be unlawful.
Schumer’s remarks reflect a Democratic strategy of emphasizing Kavanaugh’s views on executive power over social issues like Roe in their fight against his confirmation. The calculation is apparently that this line of attack is less predictable and, in the age of Trump, more compelling.
Critics have leapt to the demand that the nominee promise to recuse himself from any rulings on the investigation being conducted by Special Counsel Robert Mueller. The demand is silly. Mueller’s appointment arose from Justice Department guidelines and has nothing to do with the independent counsel statute whose upholding in Morrison has been moot since both parties allowed the law to expire nearly 20 years ago.
But there is a larger issue at stake: If a Supreme Court nomination might turn on a jurist’s musings on whether a President is indictable—and if such a question must be buffeted with rules rather than political judgment—then we have bigger problems than who will next sit on the Supreme Court.
The Framers did not specify whether a sitting President is subject to indictment. They also did not clarify what to do in the case of invading aliens from outer space. Those scenarios are about equally thinkable in a mature republic with functional constitutional politics.
Yet Kavanaugh will be raked over senatorial coals, and is indeed already being excoriated, because he speculated in a 2008 law review article that Congress should consider statutorily inhibiting investigations and prosecutions of Presidents. At a panel discussion a decade before, he appeared—by raising his hand in response to a moderator’s question—to suggest that indicting an incumbent President would be unconstitutional, too. Unsurprisingly, the Justice Department, during various administrations, reached the same conclusion.
The nominee’s views on the topic are temperate, thoughtful, and not in the least disqualifying. He is unquestionably right on Morrison v. Olson, which sparked what may be—though it is hard to choose—Justice Scalia’s most famous and prescient dissent.
Kavanaugh’s case against the executive branch investigating a chief executive, which is based not just on the time and attention such inquiries consume but also on the certainty of the investigators’ being seen as biased in one direction or another, is less persuasive. But his 2008 assertion that “the indictment and trial of a sitting President . . . would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas” is utterly irrelevant to any senatorial judgment that pertains to actual political life.
To believe that putting a President on criminal trial is a realistic scenario, we must accept the following chain of reasoning. First, the people would elect a President who commits indictable offenses. Second, the Congress would not impeach him and the Cabinet, using 25th amendment procedures, would not temporarily remove him, either. Third—no, this is not a punchline—our politics would be so dysfunctional that the public would not tolerate the removal of a prosecutor who is harassing a sitting President unto indictment and trial. Fourth, a judge would not dismiss a vacuous indictment against an incumbent President.
But such contingencies are the province of professors who have forgotten, as the great Chief Justice wrote, that “it is a constitution we are expounding.” Marshall meant that a Constitution is not expected, like an army field manual, to provide precise answers for all foreseeable circumstances. The “Framers” got their name because they provided just that: a frame in which the heavy lifting of governing, and the liquidation of unclear constitutional issues, would be left to the prudence and practice of generations.
There are several stops along the route to indicting and trying a President at which prudence could resolve the question Kavanaugh is being pilloried for asking. The people could, for starters, not elect a President with a criminal bent.
A prosecutor—who could be subjected to Senate confirmation to assure his or her impartiality—could present findings to Congress rather than to a grand jury, as Kavanaugh suggested might be more appropriate, and he or she could also use prosecutorial discretion to take into account the unique inconveniences that investigation and indictment would pose for the President. In a clear case—say, to coin a phrase, a President shooting someone in the middle of Fifth Avenue—Congress would presumably impeach and remove him, with the prosecution the Constitution permits to follow.
Were a single, reckless Inspector Javert truly pursuing a political or monomaniacal agenda—that is, trying to force a chief executive’s removal by indicting him—a judge could dismiss a baseless case or, failing that, the public would need the maturity to comprehend the situation and give the President political space to fire the prosecutor.
To be sure, the political arena is so bitterly divided right now that Tweet-inflamed supporters of Donald Trump reflexively discredit Mueller, while fevered Democrats who once had conniptions over independent prosecutors now want legislation to prevent his firing. The Democratic and Republican parties both managed to put up 2016 presidential nominees who could credibly be accused of criminal conduct.
Moreover, the contingencies I laid out assume a capacity on the part of political leaders to exercise sober judgment. The tendency today, instead, is to want law for everything and prudence for nothing. But a people that needs minutely detailed standards to tell it how to govern itself, especially in the unlikely exigency of a criminal in the White House, is not one that can handle the judgment that free political life requires. The desire for precise standards is symptomatic of law, and lawyers, creeping into every nook of social life and trying to eradicate prudence by replacing it with rules.
None of this is to say the question of whether a sitting President can be indicted is uninteresting. It merits discussion precisely where Kavanaugh discussed it: in an academic setting or the pages of a law review. But in the annals of political practice, it is a question the Constitution neither can nor must answer. In a situation in which a President is credibly accused of criminal conduct, Congress must find its way through with the support of a mature public that can distinguish between political loyalty and criminal activity. Kavanaugh called for little more, save for the suggestion that the issue might be constitutional rather than legislative.
He was more persuasive in arguing that the situation would be up to Congress to resolve. There would be particular irony in a legislature that is dysfunctional and loath to use the tools that could actually resolve such a situation—investigation and impeachment—refusing to confirm a Supreme Court nominee because he called on them to do so.