Derided as Trump Protector, Kavanaugh Defies Easy Label on Mueller Probe
(Bloomberg) -- Democrats say Supreme Court nominee Brett Kavanaugh’s own words show he would shield President Donald Trump from Special Counsel Robert Mueller’s criminal inquiry. The reality is a bit more complicated.
Senate Minority Leader Chuck Schumer of New York said Trump “chose the candidate who he thought would best protect him from the Mueller investigation.” Senator Richard Blumenthal of Connecticut on Wednesday called Kavanaugh “a dangerous and potentially profoundly damaging appointee to the highest court in the land who believes that the president is above the law.”
It’s not clear whether Kavanaugh would vote on the Supreme Court to insulate Trump from Mueller’s inquiry into Russian election-meddling. Although Democrats are focusing on the nominee’s suggestion in a 2009 article that presidents should be shielded from criminal proceedings while in office, many of his statements and articles are an imperfect fit with the Mueller investigation.
Kavanaugh has first-hand experience from two perspectives -- working for independent counsel Kenneth Starr in the investigation of President Bill Clinton, and then working in the White House for President George W. Bush.
Here’s what Kavanaugh has said touching on some of the pivotal issues surrounding the Mueller investigation into Russian meddling in the 2016 election and whether Trump sought to obstruct the probe:
Can a sitting president be indicted?
While on a panel at Georgetown Law School in 1998, Kavanaugh gave an unequivocal answer -- no. The moderator asked people to raise their hands if they believed a sitting president couldn’t legally be indicted. Kavanaugh’s hand shot up.
Later that year, he explained his views in a law review article. Although the issue is “debatable,” Kavanaugh wrote, the Constitution “seems to dictate” that “criminal prosecution can occur only after the president has left office." He said the framers saw impeachment as the mechanism for dealing with presidents who commit serious wrongdoing.
Kavanaugh called for Congress to “clarify” the law and eliminate any doubt about the protections for a sitting president.
“Such legislation not only would go a long way towards disentangling the appearance of politics from special counsel investigations,” he wrote, “it also would greatly expedite those investigations where the president otherwise would be one of the subjects of the investigation.”
Kavanaugh’s stance squares with the longstanding opinion of the Justice Department’s Office of Legal Counsel that a sitting president can’t be indicted. “There’s nothing outside the mainstream about that view,” said Harvard Law School Professor Noah Feldman, a Bloomberg Opinion columnist.
Mueller himself may feel bound by the Justice Department interpretation, though he hasn’t said so publicly.
Must the president cooperate with the special counsel?
This is where things start to get murky.
Kavanaugh came out of his experience in the Bush White House arguing not only that presidents shouldn’t be indicted while in office, but also that they shouldn’t be burdened by criminal investigations directed at them at all.
“The nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal investigation offshoots,” he wrote in the Minnesota Law Review in 2009.
But Kavanaugh indicated he was expressing a policy preference, not making a legal pronouncement. He called on Congress to pass a law insulating the president while in office.
“Congress might consider a law exempting a president -- while in office -- from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel,” he wrote.
In 1998, Kavanaugh suggested presidents generally must cooperate with criminal probes, at least when the investigation isn’t explicitly targeting the chief executive. Kavanaugh said he supported court rulings that rejected claims of executive privilege, including the 1974 Supreme Court decision that forced President Richard Nixon to turn over Oval Office tape recordings that led to his resignation over the Watergate scandal.
How all this fits into the Mueller investigation isn’t clear. Among other issues, the court rulings Kavanaugh cites don’t deal with the possibility a president might be called for an interview with a prosecutor or to testify before a grand jury.
It’s likely to be a core subject of questioning by Democrats at his confirmation hearing.
Is Mueller’s appointment constitutional?
In 1988, the Supreme Court upheld the independent counsel law that later led to Starr’s appointment by a three-judge panel. The lone dissenter was Justice Antonin Scalia, who said that having judges choose the independent counsel violated the constitutional separation of powers by intruding on the president’s authority to enforce the laws. Congress later let the law expire.
Kavanaugh said in 2016 that he would overturn the ruling. "It’s been effectively overruled, but I would put the final nail in," he said in a discussion sponsored by the American Enterprise Institute.
He expanded in an opinion earlier this year.
“The independent counsel experiment ended with nearly universal consensus that the experiment had been a mistake and that Justice Scalia had been right back in 1988 to view the independent counsel system as an unconstitutional departure from historical practice and a serious threat to individual liberty," Kavanaugh wrote. He pointed to comments from Justice Elena Kagan, a liberal who in 2015 said the Scalia opinion was “one of the greatest dissents ever written and every year it gets better.”
But the Mueller situation is different. He was appointed not by judges, but by the acting attorney general, Rod Rosenstein. That distinction could resolve the separation-of-powers problem in Kavanaugh’s mind.
Could Trump fire Mueller?
In 1998, Kavanaugh proposed a system under which the president could appoint a special counsel with Senate confirmation. Kavanaugh said the president should be allowed to fire the lawyer for any reason but would have political reasons not to do so.
The president, “if he’s wise, will oversee the special prosecutor at arm’s length or else he will have to face the music like President Nixon did,” Kavanaugh said at the Georgetown symposium. “If the president interferes or fires the special prosecutor, impeachment proceedings would not be far behind.”
It’s not exactly the same as the system that produced Mueller, but it’s close, according to Benjamin Wittes, a senior fellow at the Brookings Institution.
“Mueller looks a great deal like the type of special prosecutor Kavanaugh wrote an entire law review article to propose,” Wittes wrote on lawfareblog.com.
A tougher issue might occur should Congress pass legislation protecting Mueller from being fired. That could test the separation-of-powers principles that Kavanaugh has embraced -- and potentially show whether Democrats’ fears that he would protect the president are justified.
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