By Jules Witcover
President Trump’s nomination of Judge Brett Kavanaugh for the Supreme Court is viewed by many as a step toward throwing out Roe v. Wade, the ruling that protects a women’s right to have an abortion. But it may also be a gambit to challenge the concept that no sitting president is above the law.
In a 2009 paper written in the Minnesota Law Review, Kavanaugh as a former member of the George W. Bush White House argued that the president “should be able to face his never-ending tasks with as few distractions as possible. The country wants the president to be ‘one of us’ who has the same responsibilities of citizenship.”
Then he added: “But I believe the president should be excused from some of the burdens of ordinary citizenship while serving in office.” Once out of office, he said, the president would then be subject to such investigation and prosecution. In office, he would be subject to impeachment and trial by Congress if that body so decided.
These views have surfaced on Vox Media, a liberal news and opinion outlet, and were echoed by Democratic Sen. Cory Booker of New Jersey on MSNBC as Trump disclosed his choice. He argued that Kavanaugh “has a long-established view that a president should not be subject to civil litigation or criminal investigation while in office,” and therefore it “should raise a red flag” on his nomination.
Booker added he was “a little stunned at the way this has all has played out.” Of the 20 or so prospective choices on Trump’s list drawn up by the conservative Federalist Society for his consideration, he noted, “this guy” was the one “most assured to rule in (Trump’s) favor” in dodging the Robert Mueller investigation.
With the bark off, Booker suggested that Trump, in selecting the federal district of appeals judge, was handing himself a get-out-of-jail-free card in the ongoing investigation into possible Trump campaign collusion in the Russian elections meddling scandal.
According to Kavanaugh’s remarks in the Minnesota Law Review, he believed that a sitting president should not be subject to just such an interrogation as has been going on for at least a year into Trump and associates’ conversations and dealing with the Russians.
Kavanaugh also wrote at the time that any such “indictment and trial of a sitting president (would) cripple the federal government.” But the Senate Democrats are loaded for bear against him now, especially in light of Senate Majority Leader Mitch McConnell’s 2016 denial of a hearing or vote on President Barack Obama’s nomination of Judge Merrick Garland.
They are certain to raise these views in Kavanaugh’s confirmation hearings to sound him out on whether he still adhered to that view. If it prevailed, Trump would be relieved of testifying in one form or another in the Justice Department’s special inquiry into the multiple indictments and guilty findings linked to him, his administration or his business enterprises.
Interestingly, Kavanaugh himself raised the old argument then that no man or woman is above the law. “I strongly agree with that principle,” he wrote. “The point is not for the president to be above the law or to eliminate checks and balances on the president, but simply to defer litigation and investigation until the president is out of office.”
The good judge also insisted it was not the judiciary’s place to take a position on a president’s guilt or innocence. Instead, he wrote, Congress should “establish a clear mechanism” to deter action against “executive malfeasance” until such a president has left office.
That of course is already in place in impeachment by the House and trial by the Senate, both of which require gathering facts before moving on to judgment. But as another old axiom puts it, justice delayed is justice denied.
So the stage seems set for the anticipated showdown between the executive branch boss and the judicial branch’s high court sitting in its temple on Capitol Hill.