OK, so that’s just what he thinks the law should be, not what he thinks the law is. Distinction duly noted.
But seriously, he thinks that the law should be that the sitting President can’t even be investigated? That’s out there in cloud cuckoo land. Can’t be indicted, that makes sense, because one can argue that the correct venue for disciplinary action against the President should be impeachment. But how can Congress even make a decision on whether to impeach, if the President can’t be investigated?
ISTM that 1 and 2 are not at all inconsistent, and in your particular example, both are true. In the actual case of Kavanagh, however, only 2 is correct, since - as Bricker noted - his proposed law is in line with longstanding DOJ guidelines and as such can hardly be termed “extreme” as a proposed policy.
Bricker did not speak to the issue of urging the Congress to exempt the President from investigations. I think the DOJ guidance on indictments is a difficult issue that I can see both sides of – but asserting that the President can’t even be subject to questions? That’s not DoJ guidance, and that’s pretty extreme.
If there were some actual way of enforcing this separation that Bricker keeps talking about, then I might think it has merit. But there is not. There is no one to hold them accountable. As such, there is no reason to think that they won’t simply come to a conclusion and then rationalize a way for it to fit. It’s how human beings tend to think. We don’t even realize we’re doing it.
It’s not merely the claim itself that the President should not be able to be investigated while in office. It’s the attitude behind that. That is fascistic. It’s a basic concept of American democracy that no one is above the law, and he’s fighting against that. He wants an authoritarian President.
It is thus quite likely that he will defer to the President as much as possible in any decision, which is a bad thing. The Court is a co-equal branch. It exists to override this.
Now, maybe he won’t be like that. Does anyone have other data points that suggest that he does not act in this manner? The thing about Supreme Court nominees is that we have a ton of past decisions to look at. Do they fit the pattern I say? I did point out that this is merely a suggestion of the way he thinks: maybe I’m wrong, and he’s just misguided in this one instance. Or he may have even changed his mind.
Still, I think proposing such a law is indicative of a potential problem. Even if you genuinely believe that there should be this separation, humans are not perfect. Your beliefs will be in your decisions, and what you have to do is realize that and fight the bias.
Do you believe that there is any circumstance in which a President should be compelled to answer questions about civil or criminal matters (while still maintaining his Fifth Amendment protections)?
I missed that distinction in my commentary, and I agree that blanket immunity from subpoena duces tecum is unwarranted. The courts should certainly adopt a rule that grants flexibility to the President – we want to avoid the situation in which the President is hamstrung in the performance of his critical duties by a subpoena production deadline – but I absolutely concur that blanket immunity to civil process is not justified.
Same issue with respect to subpoena ad testificandum – the courts must be deferential to the President’s schedule but the President cannot simply refuse.
FTR, I’m not personally endorsing the position of Kavanagh in his article, either as to the freedom from indictment or the freedom from investigation. I’m just saying that I don’t see the big distinction between the two, to the point that one would be official DOJ policy and the other “extreme”. That’s all.
Too late to ETA, but his word were: “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.”
This is an endorsement of the idea, to be sure, but it’s hardly a wholesale, vigorous, and hale endorsement of the concept. “Might consider,” is not in the same ballpark as “Congress must address…” or “Congress should immediately pass…” or stronger such terms. To me, “might consider,” is an ambivalent invitation to weigh the equities, not an unmixed acceptance.
I think a fair inference is that he generally favors the idea, but doesn’t suggest it’s necessary for every observer to agree.
A final note: these words were written after the beginning of the Obama presidency, a point I mention lest a reader believes the opinion was adopted to shield Trump.
I can make the assertion that because Donald Trump wants him on the Supreme Court, he shouldn’t be on the Supreme Court. I’m comfortable with what that says about me (because what it says about me is that I don’t hate America).
The article also begins with an explaination somewhere along the lines of, “I didn’t think I’d ever say this, but I’ve changed my mind about whether the President should be treated like any other American.”
I suppose we can all speculate on the motives for the change of heart, but two theories pop immediately to mind:
He developed regrets on his work on the Starr Report that lead to the impeachment and acquittal of Clinton; or
His time working in the Bush White House during the period that torture was authorized had some lasting impact.
Of course there are other explanations possible… maybe we will never know.
Not only was the opinion voiced with no knowledge of Trump, but presumably based in part on Kavanaugh’s first hand involvement in the investigation of Bill Clinton by Ken Starr. Such investigations are inevitably politicized, either by the investigators consciously, unconsciously, or not at all but still strongly perceived to be by the other side. Just because he was right that it would end up that way with a GOP president in the crosshairs like it did with Clinton, doesn’t mean he wrote that after a time machine trip to Trump’s presidency.
I think his point is to just stop making believe criminal investigations of the top political official can be made by ‘non partisan career professionals’ (who often turn out to have strong partisan opinions and affiliations, in a toxically polarized politics) and leave it to a political body that’s not pretending it’s something else: Congress, using its oversight (to investigate) and impeachment powers (to remove from office).
Underneath the published decisions and between the lines lies…what? I’m afraid the fact that Trump nominated him has tainted him too much for me to accept. Do you really think Trump has any doubts that Kavanaugh will overturn Roe v. Wade, if given half the chance?
That seems to me the reasonable and honest position against Kavanaugh. He’s a conservative (in legal/judicial terms as understood in recent times), and one doesn’t want another of those on the court. Besides which, Trump in particular nominated him. Not saying I agree necessarily.
But it’s a better argument than dredging up a completely reasonable and mainstream opinion expressed by Kavanaugh (other than in a judicial ruling) about the pitfalls of ‘non partisan career professional’ criminal investigations of presidents, written based on first hand experience in the investigation of Bill Clinton, before anyone knew Trump would be president, and retroactively deeming that opinion ‘extremist’ because now Trump is being investigated.
While I understand Democrats are not happy with his selection, I think it’s rather futile for them to strongly oppose it. I mean, what do they expect? For Trump to nominate a liberal? And it may backfire; if the libs somehow “get their way,” resulting in Kavanaugh not accepting the nomination or getting Bork’ed, Trump will simply pick someone a lot “worse.”
For me, though, it’s significant that his change of mind did not translate into a belief that the constitution should be read to prevent such investigations, but merely that Congress should consider enacting legislation.
That’s what I want judges to do: render under Congress what is Congress’.
Can someone show me a Kavanaugh opinion that makes him “left of right” or IOW left of Gorsuch or Scalia?
I’m not seeing it. The ACA opinion was spot on. The abortion opinion shows he would overrule Roe. The NJ gun opinion shows that he is right on guns. Ken Starr was on Fox News giving a wink that this guy is a great conservative.