President Trump’s nomination of Brett M. Kavanaugh to replace Justice Anthony M. Kennedy on the Supreme Court was only surprising in the way that a bride opening gifts from her wedding registry might be surprised: You know it’s one of the items on your list, just not which one.
Here, that’s literal. Trump’s campaign-trail list of possible high court nominees was expanded last November to include Kavanaugh, but Trump made clear that Kennedy’s replacement would be one of those individuals. Each, it was safe to assume, adhered to Trump’s pledge to revisit Roe v. Wade among other conservative priorities. Each had been vetted by conservative observers to ensure that the court would shift to the right, perhaps for decades to come.
There was one particular reason, though, that Trump might have been more enthusiastic about nominating Kavanaugh than any of the others on his list. Why? Because Kavanaugh has articulated a view of presidential investigations that is precisely what Trump would like to hear given his frustration at the ongoing probe by special counsel Robert S. Mueller III.
Kavanaugh’s views were articulated in an article published in the Minnesota Law Review in 2009. He argued that he didn’t view the president as above the law, just that investigations into a president could be a significant distraction — and one that was unnecessary given Congress’s ability to hold a president to account.
“In short, the Constitution establishes a clear mechanism to deter executive malfeasance; we should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions,” he wrote. “The President’s job is difficult enough as is. And the country loses when the President’s focus is distracted by the burdens of civil litigation or criminal investigation and possible prosecution.”
He used a remarkable example to make that point.
“Looking back to the late 1990s, for example,” he wrote, “the nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal investigation offshoots.”
The implication? The investigation into Clinton lessened the likelihood that the terrorist attacks of Sept. 11, 2001, would be stopped. Instead of investigating a president and wasting his energy, Kavanaugh argues, criminal inquiries could wait until the chief executive left office. Congress should pass a law mandating that this be the standard, he wrote.
This is not simply an abstract consideration for Trump. There are a number of ways in which questions about Mueller’s probe might end before the Supreme Court for a judgment.
Can the president fire Mueller? The statute establishing the position of special counsel indicates that only the head of the Department of Justice can remove Mueller from his position. In this case, given the recusal of Attorney General Jeff Sessions, that means Deputy Attorney General Rod J. Rosenstein.
But some have argued that Trump can sidestep this constraint by declaring that an inability to fire Mueller would be a violation of his constitutional powers.
Trump’s legal team made that case in a letter to Mueller released earlier this year.
“It remains our position that the President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction,” the letter reads, “because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.”
This is a contentious position — but if Trump assumes it, it would probably be up to the high court to determine if it was sound.
Kavanaugh addresses a somewhat similar question in his 2009 article, considering the authority of the heads of government agencies to act without constant input from the president.
“Normally, persons exercising tremendous executive power and responsibility are not insulated from direction, supervision, and ultimately (if necessary) dismissal, either by elected officials or by the people themselves. Why shouldn’t someone have the authority to fire such persons at will? And if anyone is to possess that power, it must be the President. Why is it that the President should not have the power, in the first place, to direct and supervise that independent agency head in the exercise of his or her authority?”
This is an imprecise analogy to the Mueller situation, given that there is a method for removing Mueller from his position: firing by Rosenstein. Mueller is the head of his investigation, but not of a government agency.
Can Trump ignore a subpoena from Mueller? With the likelihood of Trump sitting for an interview with Mueller seemingly fading, the odds increase that Mueller might issue a subpoena to the president in an effort to get him to provide testimony to the investigation. Former New York mayor Rudolph W. Giuliani, a member of Trump’s legal team, has suggested that such a subpoena would be invalid and could be ignored by the White House.
Legal experts who spoke with The Washington Post indicate that Giuliani is wrong, that — like Clinton and the administration of Richard M. Nixon — Trump would have to be responsive to a subpoena. But, again, this is a fight that might eventually wend its way to the Supreme Court for an ultimate determination.
In his 2009 article, Kavanaugh writes that the court’s decision in Clinton v. Jones, “that presidents are not constitutionally entitled to deferral of civil suits … may well have been entirely correct.” He offers no thoughts in the article on the more directly applicable question of United States v. Nixon, in which the Supreme Court ordered the White House to respond to a subpoena for recordings of Oval Office conversations.
Can Trump be indicted? One less likely outcome from the Mueller probe is that Trump faces criminal charges stemming from the 2016 campaign or from some other action.
Whether a president can be indicted has been the subject of a great deal of debate since the Mueller probe began. The Post’s assessment notes a 2000 Office of Legal Counsel memo arguing that “the burdens of criminal litigation would be so intrusive as to violate the separation of powers.” (The subpoena faced by Clinton was civil, focused on his actions before taking office.) But any assertion by Trump that an indictment was invalid would probably end up in the same place as the other assertions above: the Supreme Court.
Where would Kavanaugh land? His 2009 essay is direct on this point:
“As I have written before, ‘no Attorney General or special counsel will have the necessary credibility to avoid the inevitable charges that he is politically motivated—whether in favor of the President or against him, depending on the individual leading the investigation and its results.’ The indictment and trial of a sitting President, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.”
Can Trump pardon himself? The president has argued in the past that, should it be necessary, he can issue himself a pardon for any federal crimes of which he stands accused. It’s a tricky question where, again, experts disagree. The presidential pardon as articulated in the Constitution doesn’t address the subject and is otherwise broad in its scope.
If Trump tried to pardon himself, the issue would probably again end up at the court. Where Kavanaugh would land on the subject isn’t clear from his 2009 article.
A few hours before Kavanaugh’s nomination was made public, CNN’s Jim Acosta reported that the network had confirmed that the administration had reviewed the 2009 article. On MSNBC’s “Morning Joe” Tuesday, Senate Minority Leader Charles E. Schumer (D-N.Y.) was asked if he thought the essay played a role in Trump’s decision.
“It wouldn’t surprise me if that was very important to Donald Trump, knowing Donald Trump,” Schumer said. “And I have no proof — do you think he didn’t inquire about this either directly or indirectly knowing Donald Trump?”
“What do you think?”