Who are we to believe?
I have leaned on the reports from several media and legal types on TV and other media outlets that Federal Court of Appeals judge Brett Kavanaugh was for going after Presidents civilly or criminally, before he helped Judge Star go after President Bill Clinton….
Bur then changed his mind and let it be known that he thought President’s should be immune from being prosecuted for those actions until they left office….
Benjamin Wittes writes in the Lawfare blog that all of us have got Kavanaugh wrong…..
Wittes writes about …’the Minnesota Law Review symposium in October 2008—his on separation of powers and mine on (of all things) judicial nominations‘…..
The conclusions we have are NOT what he see’s….
If Kavanaugh’s writings on special counsel investigations really influenced Trump’s decision to nominate him, then Trump is a bigger fool than I have imagined. Kavanaugh’s writings on the subject don’t clarify all of his views on the subject of the Mueller investigation. But they clarify certain big things, and those things are really not good for Donald Trump. Noah Feldman writes that “Properly understood, Kavanaugh’s expressed views actually support the opposite conclusion” than the one to which many knees are jerking. Feldman is exactly right. In some respects, he actually understates the case.
Kavanaugh’s writings on the subject of special counsel investigations did not begin with the 2009 Minnesota Law Review article. In 1998, he published in the Georgetown Law Journal an article he had written after leaving his job with Kenneth Starr’s investigation but before returning to the office to help write what became the Starr Report.
I remember this article vividly, because it was an unusual one for its time. This was a period in which a consensus had developed that the old independent counsel statute had to go. Conservatives had always hated it. Liberals had come to hate it. And, in fact, Congress would allow it to lapse in 2000 after everyone from Starr himself to the Justice Department urged its end.
Kavanaugh, by contrast, made the then-unpopular case that some independent counsel law remained necessary: “future debates,” he wrote, “should not focus on whether a special counsel statute is necessary, but rather on the more pertinent questions of by whom and under what conditions a special counsel should be appointed.” He went on to sketch out what a healthier independent counsel law might look like—healthier as a matter of constitutional law, as a matter of policy and as a matter of democratic governance. While Congress did not take him up on writing this particular law, his specific proposal bears attention today by those who are interested in how Kavanaugh might respond to the Office of Special Counsel in the age of Trump. Three things in particular stand out….
The first is that the structure he describes looks a great deal like the regulatory structure under which Robert Mueller serves…
Second, the article also makes a strong prudential case for independent investigations of the President and other high officials, given the inherent conflicts facing the attorney general in situations in which senior administration officials are investigative subjects…
Third, and perhaps most interestingly, Kavanaugh proposed in this article that Congress codify what he described as “current law of executive privilege available in criminal litigation to the effect that the president may not maintain any executive privilege, other than a national security privilege, in response to a grand jury or criminal trial subpoena sought by the United States.” Pause over that for a second. In 1998, Brett Kavanaugh stated his view (correct under Eighth Circuit precedent obtained by the Starr investigation) that current law already precluded the president of the United States from citing executive privilege in a criminal investigation. And he proposed that Congress codify this rule into a new independent counsel statute.
Note the strength of some of his language on this point: If the law permitted government officials to assert common privileges against the federal grand jury,
a government official (including the President or White House Counsel) safely could tell a White House or other agency attorney (or other official) that he destroyed subpoenaed documents, paid off potential witnesses, erased a subpoenaed tape, or concealed subpoenaed materials—or worse. The courts have rightly rejected the executive’s attempt to conceal such information, and Congress should codify those results to prevent future Presidents from trying the same gambit.
In other words, by the time Kavanaugh gave his speech in Minnesota, he had already written a developed statutory proposal that described a structure very much like that of the Mueller investigation; he had defended the very idea of such investigations; and he had described the president as having no executive privilege to assert before them….
Please RE-READ the third thing that stands out…..
If Brett Kavanaugh in fact STILL believes in what he wrote back in 1998?
The US Supreme Court could have a situation where Robert Mueller serves President Donald Trump with a supoenoa to appear before a grand jury and Trump claimed executive privilege , to which the Supreme COULD vote 5-4 with Kavanaugh to ORDER the President to appear and without any deference to the Office of the Presidency….
I can’t be the only person reading this….
And if Trump’s staff doesn’t know this ?….
They should all be fired….
Now the judge IS a past Bush political guy….
He knows how the game is played….
The question of paramount importance RIGHT NOW , might just be?
Does kavanaugh stand by his feeling in that 1998 paper?
If he does?
He’ll have NO probable acting his nomination vote…
And Donald Trump’s headaches will be right back…..
And this dog?
Like a lot of people will have made a mistake in the guy….
Oh, and I still don’t support putting guy with his OTHER right leaning views….
But getting Trump out of the White House is probably worth it….