[Editor’s note: This essay is a sequel to an earlier piece by Bob Bauer and Ryan Goodman on the nomination of Judge Brett Kavanaugh and the Russia investigation.]
A debate has erupted over Judge Brett Kavanaugh’s views on legal issues which could arise out of the pending investigations of the man who has nominated him for the Supreme Court, President Donald Trump. These issues include whether a sitting president should be immune from criminal processes such as investigation and indictment. Both of us have written in recent days to address these and related topics (Eisen in the New York Times with Caroline Fredrickson, Goodman in Just Security with Bob Bauer). In this essay we address some further aspects of the problematic and historically unprecedented situation in which we find ourselves: a president who is the subject of a criminal investigation nominating a judge who could be the deciding vote with respect to pivotal issues in that investigation and selecting that nominee based, at least in part, reportedly upon a review of his views suggesting how he would come out on disputes in that investigation.
The debate about Judge Kavanaugh is developing along multiple tracks. We focus here on the question of what exactly the nominee’s writings say about whether a president can be subject to criminal investigation and indictment.
There is disagreement over the answer to that question among progressive, independent, and centrist legal commentators who we respect. Noah Feldman, Asha Rangappa, and Ben Wittes assert that Kavanaugh has either expressed no view of the constitutional question or, if anything, that Kavanaugh’s writings imply he thinks a sitting president is not immune from indictment.
To be clear, the questions we raise in addressing our colleagues’ views are neither about Judge Kavanaugh’s professional qualifications for the Supreme Court, nor about the timing of the nomination hearings while President Trump reportedly remains a subject of an ongoing criminal investigation. We are concerned, instead, about the fate of American institutions were Judge Kavanaugh to refuse to answer questions about his views on presidential immunities during the nomination hearing or refuse to commit to recusing himself if his answers or non-answers so demand it. In other words, this is the “big question” that Greg Sargent has outlined for the nomination hearings.
High constitutional principles are at stake. In our view, no person should be a judge in their own case. An application of that principle is that no person should get to preselect the judge that hears their case. Were a Justice Kavanaugh to issue the deciding vote in a 5-4 Supreme Court opinion on a criminal case implicating the President, it may do long-term damage to the Court and to what remains of the American national community. It would reverberate within the public and future students of the law like Bush v. Gore, only worse (likely much worse).
In this regard, we fundamentally disagree with our friend and colleague Asha Rangappa’s framing the question as about a technical conflict of interest or about anything having to do with Kavanaugh’s changing his views to please President Trump. There is no technical conflict in the traditional sense. The problem is, indeed, something of the opposite: that Justice Kavanaugh was chosen because of, and will remain committed to, his convictions about the president’s immunity from criminal process. (If anything, Trump is the one who has a conflict between his personal interests and those of the public.) We also depart from our friends and colleagues Noah Feldman and Ben Wittes, who, in separate articles, explain away Judge Kavanaugh’s clearly stated beliefs. But no amount of interpretive creativity can erase Judge Kavanaugh’s public pronouncements in the Minnesota Law Review, the Georgetown Law Journal, two pieces in the Washington Post, an American Enterprise Institute speech, judicial opinions, or any of the other publications that have printed them. It is impossible to square our colleagues’ contention that Judge Kavanaugh’s various articles, for example, merely outline a singular legislative policy suggestion and do not have any implications “from a legal and constitutional perspective” (as Feldman puts it) with Judge Kavanaugh’s own constitutional analysis.
One example, among several, is Judge Kavanaugh’s writing that, “The Constitution itself seems to dictate, in addition, that congressional investigation must take place in lieu of criminal investigation when the President is the subject of investigation, and that criminal prosecution can occur only after the President has left office.” In 1999, Kavanaugh co-wrote a piece for the Washington Post with a fellow Ken Starr alumnus in which he stated that President Clinton’s “congressional supporters and foes agreed — consistent with the Constitution, which appears to preclude indictment of a sitting president — that the government should consider indicting Bill Clinton after he leaves office.” (Emphasis added.) These are unmistakably statements of constitutional interpretation; they are exactly the type of analysis that Judge Kavanaugh might soon be asked to perform should he consider the Mueller investigation as a Justice of the Supreme Court. Judge Kavanaugh told us his opinion on independent investigations of the president. We, the Senate, and the nation need to know whether we are right to take him at his word.
Even if our colleagues are correct in their description of Judge Kavanaugh’s many statements on the immunity of a sitting president, these statements are still important areas of inquiry during the confirmation process. In fact, it is crucial to consider a judge’s policy preferences when we are considering appointing him to a Court that, in essence, makes policy. Supreme Court Justices consider many cases that involve completely novel fact patterns for which little or no precedent exists; in these cases—some of which may very well arise from the Mueller investigation—the Justices will make determinations by drawing upon both their interpretation of the Constitution and their policy perspectives. Clinton v. Jones is an illustrative case in which the Justices concluded that subjecting a president to civil suit would not unduly interfere with his ability to perform his official duties. And, indeed, Judge Kavanaugh has written about how his own executive branch experiences inform his views of the type of calculation in Jones. In sum, we should demand that Senators receive a clear picture of Judge Kavanaugh’s constitutional and constitutionally-relevant policy positions.
This is one reason we also consider it misguided to analyze each of Judge Kavanaugh’s public pronouncements without a larger, holistic consideration of his career on the federal bench. Judge Kavanaugh’s academic articles, from his time serving in Kenneth Starr’s special counsel’s office to his time as a federal judge, represent only a small fraction of his legal thinking—the vast majority of which he has done as a judge on the D.C. Circuit. His judicial opinions paint a very different picture of his legal theory than our colleagues have posited, and invite more questions than answers about his views on the constitutionality of independent investigations.
Judge Kavanaugh helped pioneer a maximalist theory of presidential power associated with the notion of a “unitary executive.” Throughout his tenure on the bench, Judge Kavanaugh has used this theory of presidential power to insulate the President from suit and vastly expand the President’s ability to exert control over executive agencies at the expense of their independence. This vision of unaccountable presidential power was part of the reason that the Republican-controlled Senate took more than three years to confirm Kavanaugh to the D.C. Circuit in 2006—and it is exactly why our colleagues are now wrong to dismiss Judge Kavanaugh’s public pronouncements on the inadvisability of criminally investigating the President. At the very least, Judge Kavanaugh must be asked to clarify and expand upon these declarations.
In the end, we may actually share common ground with Rangappa and others that the fundamental concern is that Kavanaugh has already strongly indicated his views and he’ll largely stick with them. Trump’s team that vetted potential nominees reportedly looked at Kavanaugh’s past public pronouncements on indicting a sitting president. Most recently, in a public speech at the American Enterprise Institute in fall 2017, the judge also signaled out one Supreme Court opinion by Justice Rehnquist with which he disagreed: the opinion upholding the constitutionality of the independent counsel statute. It was at a time that commentators noted, “Kavanaugh tops the list of judges most often named as Trump’s next pick.” There is an unmistakable appearance that President Trump potentially selected the judge, in significant part, because of his set of views on this area of law.
That’s the historic juncture at which the nation finds itself. The situation involves the president as a potential target of an ongoing criminal investigation into a foreign power’s interference in the democratic process. Under the circumstances, what we ask for is relatively modest. The Senate has a duty to consider the full scope of the nominee’s views on the law and on legal and judicial policy. If Judge Kavanaugh can assure the Senate and the American people that he is not committed to an unaccountable imperial presidency, as suggested by his writings, then this matter would be laid to rest. If he cannot do so or refuses to answer such lines of inquiry, he must commit to recusing himself from any decisions at the intersection of the special counsel investigation and the related exercise of presidential powers. The public’s trust in the Court and the Court’s impact on our constitutional system hangs in the balance.
What happens after those questions are (we hope) posed is yet another potential threat or opportunity for the American constitutional system in the Trump era. How Judge Kavanaugh responds can be a defining moment for that, whether for good or for ill. It is also a defining moment for those of us who study, write and/or teach about these issues—whether we try to minimize the potential rupture by papering over Kavanaugh’s views or whether we acknowledge the breadth of his views of presidential power and grapple more directly with how to address them given the challenges at this pivot point in our history. We think it is appropriate to ask scholars, analysts and citizens to step into this space and demand more of ourselves, of Senators, and of the nominee.