OPINION — Brett M. Kavanaugh ought to be questioned on how a President, alleged to have violated a federal criminal law - say conspiring to violate the Federal Election Laws - could be investigated based on the views he promoted in his 2009 article, “Separation of Powers During the Forty-Fourth Presidency and Beyond,” published in the Minnesota Law Review.
In that article, Kavanaugh said, “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.”
Kavanaugh instead suggested the new law, "simply to defer litigation and investigations until the President is out of office."
Kavanaugh also proposed, “If the President does something dastardly, the impeachment process is available…against a bad-behaving or law-breaking President.”
He adds, “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. The President’s job is difficult enough as it is.”
Kavanaugh argued in the article, “Criminal investigations targeted at or revolving around a President are inevitably politicized by both their supporters and critics.”
What does he expect would happen if an impeachment investigation in Congress were to begin based on allegations, with no prior investigation having taken place? Could that occur today under any circumstances, with a Republican in the White House and his party in control of Congress?
In deferring the indictment and trial of a sitting President, Kavanaugh argues such activity "would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas."
What does he think would happen if the impeachment process were taking place? Or is he sure nothing like that would ever happen?
Kavanaugh also said that, “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.”
Does he think an impeachment investigation would be any less partisan?
What Kavanaugh leaves out, is how and who will do the investigating for the House Judiciary Committee, in the first instance, if federal investigative agencies are on the sidelines?
And who investigates if the President and his administration supporters obstruct congressional investigators? Or what happens if the President undertakes additional illegal activities?
Kavanaugh justified his position on delaying criminal investigations of a President based on his own experiences, first as part of the Kenneth Starr Independent Counsel investigation into President Bill Clinton’s misadventures, and then, as a key White House staffer for President George W. Bush at the time of the September 11, 2001 terrorist attacks and thereafter.
In the article, Kavanaugh muses, “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.”
Those around President Clinton and in the relevant intelligence and Defense Department agencies have assured me that on the days when Clinton may have been diverted from bin Laden, those around him were not.
Yesterday, in responding to a question from Sen. Dianne Feinstein (D-Calif.), Kavanaugh recalled that on September 12, 2001, “President Bush said this will not happen again. This will not happen again. And he was of single-minded focus — every morning for the next seven years for President Bush was still September 12, 2001. Single-minded focus.”
Of course, Bush, personally, faced no criminal investigation or even threat of a civil suit during his eight years in office, but despite his “single-minded focus,” bin Laden was not tracked down during his administration. That happened during President Obama’s time in office.
Kavanaugh wrote, “A President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.” He could have been writing about President Trump, today. But just think for a moment of what this country would be like if Robert Mueller III had not been appointed.
No federal investigation of the 2016 election would occur until 2021 or even later, and with certainty, I can say there would be no impeachment investigation underway from this Republican-controlled House Judiciary Committee.
