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- Brett Kavanaugh, who President Donald Trump nominated to replace the retiring Supreme Court justice Anthony Kennedy, previously contributed to a 1998 report that made a case for President Bill Clinton’s impeachment.
- This experience has shaped Kavanaugh’s belief that presidents should not be indicted or distracted by investigations while in office.
- “Whether the Constitution allows indictment of a sitting President is debatable,” he has said.
- Kavanaugh instead believes impeachment is the proper way to deal with a president’s serious and “dastardly” misbehavior.
Donald Trump’s pick for a seat on the Supreme Court is Brett Kavanaugh, a man who holds strong opinions on whether a president should be indicted or impeached.
A Yale Law graduate, Kavanaugh started his career as an associate counsel with special prosecutor Kenneth Starr, where he helped draft the report that recommended Clinton should be impeached for having an extramarital affair with White House intern Monica Lewinsky.
The report laid out 11 possible grounds for impeachment, including how misleading the public and lying to staff amounted to obstruction of justice. These findings have become particularly relevant as special counsel Robert Mueller, who is heading the Russia investigation, considers actions Trump has taken that could possibly be considered obstruction of justice.
But despite his experience co-authoring the report, or rather because of it, Kavanaugh has become an ardent supporter of a president’s power.
In 1998, Kavanaugh wrote extensively on the matter of impeaching a president, writing that independent counsel investigations can take “too long,” easily become “politicized,” and investigations can go beyond their original scope. He also seemed unconvinced that a president can even be indicted while in office.
“Whether the Constitution allows indictment of a sitting President is debatable,” he said.
Over a decade later, Kavanaugh reiterated this belief in the Minnesota Law Review saying, “a serious constitutional question exists regarding whether a President can be criminally indicted and tried while in office.”
He also said criminal investigations affecting a sitting president are “time-consuming and distracting” and should be deferred until after the end of a president’s term.
“Like civil suits, criminal investigations take the President’s focus away from his or her responsibilities to the people. And a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President,” Kavanaugh wrote.
He added: “In particular, 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… The indictment and trial of a sitting President, moreover, would cripple the federal government, rendering it unable to function with credibility.”
Trump said on Monday evening that he does “not ask about a nominee’s personal opinions.” But Kavanaugh’s thinking on the power of the Oval Office and risks of investigating a president is clear, and experts believe he would not support a case that requires Trump, or any other president, to be subpoenaed or indicted.
Though Kavanaugh does not support investigating a sitting president, the one issue that could still trouble Trump is the judge’s belief in the role of impeachment.
“If the President does something dastardly, the impeachment process is available,” Kavanaugh wrote in the Minnesota Law Review in 2009. “No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress.”