Democratic Rep. Adam Schiff Echoes Senator Feinstein In Wildly Misrepresenting Brett Kavanaugh’s Beliefs

On Sunday, Rep. Adam Schiff (D-CA) sent out the following tweet:

Schiff’s tweet is remarkably similar to the tweet sent out by Senator Dianne Feinstein (D-CA) on Friday.

As The Daily Wire explained in great detail when correcting Feinstein’s error, Brett Kavanaugh does not believe that a president is "above the law." Such an assertion is patently false.

In 2009, Kavanaugh wrote in the Minnesota Law Review that Congress should think about enacting a statute which would defer "personal civil suits," as well as "criminal investigations and prosecutions" against a president until he has left office:

To be sure, one can correctly say that President Clinton brought that ordeal on himself, by his answers during the deposition in the Jones case if nothing else. And my point here is not to say that the relevant actors – the Supreme Court in Jones, Judge Susan Webber Wright, and Independent Counsel Kenneth Starr – did anything other than their proper duty under the law as it then existed. But the law as it existed was itself the problem, particularly the extent to which it allowed civil suits against presidents to proceed while the President is in office.

With that in mind, it would be appropriate for Congress to enact a statute providing that any personal civil suits against presidents, like certain members of the military, be deferred while the President is in office. The result the Supreme Court reached in Clinton v. Jones – that presidents are not constitutionally entitled to deferral of civil suits – may well have been entirely correct; that is beyond the scope of this inquiry. But the Court in Jones stated that Congress is free to provide a temporary deferral of civil suits while the President is in office. Congress may be wise to do so, just as it has done for certain members of the military. Deferral would allow the President to focus on the vital duties he was elected to perform.

Congress should consider doing the same, moreover, with respect to criminal investigations and prosecutions of the President. In particular, 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. Criminal investigations targeted at or revolving around a President are inevitably politicized by both their supporters and critics. As I have written before, "no Attorney General or special counsel will have the necessary credibility to avoid the inevitable charges that he is politically motivated – whether in favor of the president or against him, depending on the individual leading the investigation and its results." The indictment and trial of a sitting President, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis...

One might raise at least two important critiques of these ideas. The first is that no one is above the law in our system of government. I strongly agree with that principle. But it is not ultimately a persuasive criticism of these suggestions. The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office.

A second possible concern is that the country needs a check against a bag-behaving or law-breaking president. But the Constitution already provides that check. If the President does something dastardly, the impeachment process is available. No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress. Moreover, an impeached and removed President is still subject to criminal prosecution afterwards. In short, the Constitution establishes a clear mechanism to deter executive malfeasance; we should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions.

As mentioned in the Feinstein piece, it cannot be overstated that Kavanaugh is placing the onus on Congress to act because such a statute would be within their authority as the legislative body. He is not advocating that the Supreme Court create such a statute as the Court’s role in the government is not to create law.

Moreover, in his 2009 article, Kavanaugh openly ponders deferment of "personal civil suits," as well as "criminal investigations and prosecutions," not abandonment or permanent immunity.

Lastly, the official position of the Department of Justice is in line with Kavanaugh’s argument. In a 2000 opinion, the DOJ stated in part:

In 1973, the Department of Justice concluded that the indictment and criminal prosecution of a sitting President would unduly interfere with the ability of the executive branch to perform its constitutionally assigned duties, and would thus violate the constitutional separation of powers. No court has addressed this question directly, but the judicial precedents that bear on the continuing validity of our constitutional analysis are consistent with both the analytic approach taken and the conclusions reached. Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.

Regarding Trump’s choosing of Brett Kavanaugh, Rep. Adam Schiff is simply speculating. Regarding his statement that Kavanaugh believes a president is "above the law," Schiff is, deliberately or not, misleading his audience.


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