Every Supreme Court nominee considered by Donald Trump was a genuine, Federalist Society approved ultraconservative. Every one of them could be counted on to uphold the right of big business while tearing away women’s rights, voting rights, gay rights, labor rights, and basically just rights. If it wasn’t included, word for word, in a document that was written before the steam engine, repeating rifle, and the corporation were invented … it’s out of here.
But something had to give Brett Kavanaugh the edge. There had to be something that made this member of the DC court a favorite with Trump, even though the most rabid members of his base favored someone else. Just what could it be?
Having seen first-hand how complex and difficult that job is, I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible. The country wants the President to be “one of us” who bears the same responsibilities of citizenship that all share. But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office.
That’s from an article that Kavanaugh authored in 2008 for the Minnesota Law Review. Just what burdens should be “excused” for sitting presidents. Indictments for one thing. Civil suits for another. Kavanaugh believes that presidents should be free from being sued while in office — a position he, rather inconveniently, did not hold while working for Ken Starr. To be fair, Kavanaugh calls on Congress to make this clear through legislation. It’s not clear how he would rule if such a suit against Trump should wander his way … but we’ll likely get to find out.
Kavanaugh’s defense of the idea that the executive — along with military leaders — should be freed from the threat of criminal indictment, comes with a statement that might be particularly pleasing to Trump that “ no AttorneyGeneral or special counsel will have the necessary credibility to avoid the inevitable charges that he is politically motivated.” Kavanaugh’s position is that the president’s role is so important, that even preparing for a criminal investigation is too much. And confronting the idea that this would put the president “above the law,” Kavanaugh’s defense: “… 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.”
So, Kavanaugh wouldn’t excuse the president from justice forever, just allow him to do as he pleases for years. Someone might want to read the would-be Supreme Court justice, that little saying about “justice delayed.”
Kavanaugh goes on to argue that the Constitution provides a solution for a “law-breaking” president — impeachment.
What he doesn’t explain is how that law-breaking status would be determined in a system where a president not only can’t be indicted but can’t be expected to deal with the questioning and examination that comes with a criminal investigation. A president might be impeached without an indictment, but to suggest that a president—any president—would be impeached without facing the stages of an investigation, including the collection of evidence.
But even in talking about impeachment, Kavanaugh weighs against the idea of a special counsel.
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.
Again, Kavanaugh has deferred any chance of justice, giving the nation just one tool against the sitting executive and at the same time removing any ability to use that tool.
What does Trump see in Kavanaugh? A guy who will give him what he wants most, years of relief from facing his crimes.