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Could Brett Kavanaugh Protect Trump From Prosecution?

Day two of Kavanaugh’s Supreme Court confirmation hearings brought the issue of executive power to the forefront

Brett Kavanaugh, Donald McGahn. President Donald Trump's Supreme Court nominee, Brett Kavanaugh, a federal appeals court judge, left, accompanied by White House counsel Don McGahn, right, testifies before the Senate Judiciary Committee on Capitol Hill in Washington, for the second day of his confirmation to replace retired Justice Anthony KennedySenate Supreme Court, Washington, USA - 05 Sep 2018

President Donald Trump's Supreme Court nominee, Brett Kavanaugh, a federal appeals court judge, left, accompanied by White House counsel Don McGahn, right, testifies before the Senate Judiciary Committee on Capitol Hill in Washington.

Andrew Harnik/AP/REX Shutterstock

WASHINGTON — Can a judge issue a subpoena for a sitting president in a criminal investigation? Can a president be indicted by a grand jury? Can a commander-in-chief pardon himself?

These questions speak to the issue of executive power, and they’re more important than ever given the legal troubles and disregard for the rule of law exhibited by Donald Trump. As you’d expect, they’ve loomed large over Judge Brett Kavanaugh’s Supreme Court confirmation hearings this week. Yet Kavanaugh has done his best to duck these questions and hold back answers about where he stands on what is perhaps the defining issue of the Trump presidency.

As a young lawyer working on independent counsel Ken Starr’s probe into President Bill Clinton more than two decades ago, Kavanaugh took a restrained view of presidential power. In a 1995 memo to Starr and others involved in the investigation, Kavanaugh noted “the deeply rooted history and tradition of this country’s jurisprudence that the president is not above the law. Why should the president be different than anyone else for the purposes of responding to a grand jury subpoena?”

However, later in life, working in President George W. Bush’s White House and as a federal judge, Kavanaugh seemed to drift closer to a belief in the so-called “imperial presidency,” in which a president is not treated under the law like an average person would be. In 1999, he said that “maybe Nixon was wrongly decided” — referring to the Supreme Court’s unanimous decision in U.S. v. Nixon to force the White House to turn over tapes related to Watergate — because it “took away the power of the president to control information in the executive branch.” In a 2009 law review article, Kavanaugh suggested that Congress pass a law that would let a sitting president off the hook from civil or criminal prosecution. “I believe that the president should be excused from some of the burdens of ordinary citizenship while serving in office,” he wrote. “We should not burden a sitting president with civil suits, criminal investigations or criminal prosecutions.” (The Justice Department’s official position, it’s worth noting, is that a sitting president cannot be indicted.)

So where does Kavanaugh stand today? Former Trump lawyer-fixer Michael Cohen’s guilty plea last month directly implicated President Trump in criminal activity. Special Counsel Robert Mueller has sought for months to interview Trump as part of his investigation and may decide to subpoena the president. And Trump has already pardoned several of his political allies — who’s to say he won’t pardon himself if the need arose?

Sen. Dianne Feinstein (D-CA), the judiciary committee’s ranking member, asked Kavanaugh about U.S. v. Nixon and whether a president should be immune from a criminal investigation. Kavanaugh said that Nixon was one of the four greatest Supreme Court decisions in history — along with Marbury v. Madison, Youngstown Sheet and Tube and Brown v. Board of Education — but when pressed by Feinstein about the broader question of requiring a sitting president to respond to a subpoena, Kavanaugh dodged the question.

“So you can’t give me an answer on whether a president has to respond to a subpoena from a court of law?” Feinstein said.

Kavanaugh went on talking but failed to address the issue, saying he would follow in the footsteps of previous nominees who had refused to answer hypothetical questions.

Sen. Pat Leahy (D-VT), one of the judiciary committee’s longest serving members, raised the issue of a self-pardon. “President Trump claims he has an absolute right to pardon himself,” Leahy asked. “Does he?”

Kavanaugh responded that he hadn’t studied or written about the question of self-pardons and therefore wasn’t going to answer. Leahy pushed harder, asking if a president has the ability to pardon somebody in exchange for a promise from that person that they wouldn’t testify against him. Again, a frighteningly relevant question given the current occupant of the White House. And again, Kavanaugh wouldn’t go there. “Senator, I’m not going to answer hypothetical questions of that sort.”

We’re well into Day 2 of Kavanaugh’s confirmation hearings and still we have little clue about his views on executive power and the presidency. At one point, Kavanaugh told the senators that the September 11th attacks changed his views. He was working in the Bush White House at the time, and living through that experience pushed him in the direction of a more powerful — and arguably untouchable — executive.

Which is exactly the kind of justice you’d imagine President Trump wants. With each outburst at Mueller or Attorney General Jeff Sessions, Trump is inching closer to a full-blown constitutional crisis, an ugly battle that could end up before the Supreme Court. At best, we can say that Kavanaugh’s views on presidential power are fuzzy. At worst, Kavanaugh may be the type of judge willing to cast a vote that protects Trump from the reach of the law.  

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