On Friday, Senator Dianne Feinstein (D-CA) sent out the following tweet about President Trump’s SCOTUS Nominee Brett Kavanagh:
Feinstein’s first contention, that Kavanaugh “has said that sitting presidents can NOT be prosecuted” and “should NOT be investigated,” is wildly misleading.
In 2009, Kavanaugh penned a piece for the Minnesota Law Review in which he stated, speaking first about former President Clinton:
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.
It must be noted that Kavanaugh is not advocating that the Supreme Court do anything. He is stating that it would be “appropriate for Congress to enact” legislation which would defer criminal and civil suits until after a president leaves office. Moreover, he states that the Constitution already “establishes a clear mechanism to deter executive malfeasance.” This process is called impeachment.
The power to bring impeachment charges against the president is expressly assigned to the House of Representatives in Article I, Section 2, Clause 5 of the United States Constitution. The power to convict on those charges is expressly assigned to the Senate in Article I, Section 3, Clause 6.
Article I, Section 3, Clause 7 then states: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of Honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
During a 1998 panel regarding the Independent Counsel Statute, which expired in 1999, Kavanaugh stated a similar position:
I think that last comment raises the question whether the president is subject to criminal indictment at all which is a question that has been a lurking constitutional issue for a long time, which at some point here should be resolved so that we can determine whether the Congress or an independent counsel should investigate the president when his conduct is at issue. I tend to think it has to be the Congress because of the kind of attacks that we’ve seen recently and because of the types of issues that were just pointed out. It is war, and if it’s gonna be war, it’s got to be Congress and not an isolated prosecutor appointed by a panel of three judges we’ve never heard of.
When asked by moderator Mark Tuohey what the implication was if “a sitting president cannot be indicted during a term of office,” Kavanaugh replied:
The implication is that Congress has to take responsibility for overseeing the conduct of the president in the first instance – that’s the role I believe the Framers envisioned, and that’s the role that makes sense if you just look at the last twenty years. It makes no sense at all to have an independent counsel looking at the conduct of the president. Now, to be sure, most criminal investigations are going to involve multiple subjects, so we still need a criminal investigation ongoing, [but] when it comes to looking at the conduct of the president, it has to be the Congress. Congress has to get in this game and stop sitting on the sidelines.
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.
Feinstein’s claim that Kavanaugh believes that a president should have the “authority to fire a special counsel at will” is, once again, misleading.
In a 1998 article for Georgetown Law Journal, Kavanaugh wrote that “Congress should give back to the President the full power to act when he believes that a particular independent counsel is ‘out to get him.'”
Currently, an independent counsel can be removed for “good cause,” a term undefined as a matter of law or practice. A special attorney appointed directly by the Attorney General can be removed at will.
The “good cause” provision strikes many commentators as unconstitutional or, at least, unwise. As Justice Scalia intimated in Morrison, at first blush it is somewhat difficult to understand why the President does not have the authority to dismiss any executive branch official at will. In any event, Justice Scalia also argued that a federal prosecutor should be removable at will for more practical reasons – that “the primary check against prosecutorial abuse is a political one” and that the independent counsel system thwarts this traditional check on a prosecutor’s actions. If there is an out-of-control prosecutor, Justice Scalia reasons that the President should possess the authority and the responsibility to remedy the situation…
Congress should give back to the President the full power to act when he believes that a particular independent counsel is “out to get him.” Such a step not only would make the special counsel accountable, but it would also force the President and his surrogates to put up or shut up.
The objection to “removal at will” is that the independent counsel might be too timid because of fear that he could be fired. That objection overstates the danger. After all, a number of special prosecutors have been appointed throughout our history, and there is simply no persuasive evidence that the threat of removal adversely affected their investigations. Indeed, in a perverse way, removal is a sure way to immortality, as Archibald Cox learned. Moreover, President Nixon’s firing of Cox – the last occasion when a President removed a special counsel – created an enormous controversy and triggered impeachment proceedings.
History clearly demonstrates that the President will pay an enormous political price if he does not have a persuasive justification for dismissing a special counsel. The deterrent to a President dismissing a special counsel thus would be the same as the deterrent to his firing the Attorney General – a practical and political as opposed to legal deterrent requiring the president to be able to explain his decision to Congress and the public.
Even Supreme Court Justice Elena Kagan has praised Scalia’s dissent in the Morrison case (which Kavanaugh cites in his Georgetown Law Journal article).
Intentionally or unintentionally, Senator Feinstein has greatly misinformed her audience by whittling Kavanaugh’s lengthy and nuanced opinions down to a 140 character panic-tweet. Kavanaugh’s views regarding the indictment and prosecution of a sitting president appear to be the norm, reflected by the Department of Justice twice over. His opinion on presidential power over special counsel investigators also appears balanced and well thought out.
Perhaps the most important part of Kavanaugh’s opinions regarding these issues is that he continually places the onus on Congress to act rather than an activist Supreme Court. However, this doesn’t seem to matter much to Feinstein.
Expect more of this from the Democrats as confirmation time approaches.