This is wrong. Kavanaugh’s article and appointment by Trump pose no conflict of interest. And the best way to stem the damage Trump has already done to the rule of law and the legitimacy of federal law enforcement would be for the full court to review any legal issues stemming from Mueller’s investigation.
Kavanaugh’s law review article does not reach legal conclusions on issues regarding civil and criminal cases involving a president. Rather, he comes to the fairly simple — and somewhat obvious — factual conclusion that legal battles can be time-consuming and distracting for the chief executive. Kavanaugh recommends that Congress pass a law deferring such cases until the president’s term is complete. The proposal that Congress should enact legislation protecting the president is important, as it undercuts the allegation that Kavanaugh is predisposed to rule in favor of Trump as a constitutional matter. At most, he is implying that the Constitution does not, on its own, afford such protection — but his article remains agnostic on that question. (Of course, in 2009, the article wasn’t dealing with Trump’s case but was instead based in part on Kavanaugh’s experience working as an assistant to Kenneth Starr under the largely unbounded independent counsel statute, which expired in 1999.)
The focus on Kavanaugh’s article ignores the significant differences between policy proposals and judicial pronouncements on the office of the presidency. Supreme Court justices are well aware that declarations of parameters for the executive branch on core constitutional issues cannot be undone by statute — these decisions will be binding precedent and apply to anyone who occupies the office in the future, regardless of party. To wit, the court’s decisions in United States v. Nixon , limiting executive privilege, and Clinton v. Jones , refusing to grant immunity to the president in civil suits over prior acts, are precisely the cases that place Trump on shaky legal ground now. The fact that any get-out-of-jail-free card for Trump could also be deployed by a Democratic president in the future should encourage greater judicial restraint, not less, particularly if a judge were inclined to act on a partisan basis.
But the most troubling argument for Kavanaugh’s recusal from any litigation arising from Mueller’s investigation is the idea that he would be unable to rule fairly and objectively in a case affecting the president who appointed him. No evidence is offered in support of this claim other than an apparent assumption that Kavanaugh would feel beholden to Trump and pressured to rule in his favor. (There appears to be no distinguishing principle for why that same issue would not arise for Justice Neil Gorsuch, who has faced no similar calls for recusal.) This claim is especially bizarre in the context of the judiciary, given that the purpose of lifetime tenure for judges is precisely to ensure their independence and ability to weigh cases without fear of political retribution.
After all, the same argument could be made against the two Trump appointees involved in or supervising Mueller’s investigation: FBI Director Christopher A. Wray and Deputy Attorney General Rod J. Rosenstein, who arguably have the most impact on the inquest in terms of directing its resources and day-to-day decisions. Yet, both Wray and Rosenstein have vigorously defended Mueller (much to the administration’s frustration), with Rosenstein even approving an expansion of the investigation’s scope that could place the president in potentially more legal jeopardy. Kavanaugh would face no consequences for ruling against the president — there is literally nothing Trump could hold over him before or after such a case was decided. So why would he be unable to be impartial, when two political appointees who are directly in the president’s crosshairs and subject to termination at will have managed it?
Of course, Kavanaugh should be grilled rigorously on his writing, his opinions and even his personal views. (For full disclosure, I know Kavanaugh from his alumni involvement with Yale Law School, where I was an associate dean.) As it happens, Kavanaugh argues in that same 2009 article that the independence of the judiciary requires intensive examination for judicial appointees, writing, “Article III judges are appointed for life and — unlike executive branch officials — are not subordinate to their appointing presidents.” The Senate can exercise its constitutional prerogative to not confirm Kavanaugh based on his answers, or even because lawmakers feel he is not fit or qualified for the role. But deciding not to confirm him on those grounds is entirely different from assuming that he would automatically act on political bias if he did join the court.
That line of reasoning, in fact, might sound familiar to the man who nominated him. Arguing that a confirmed justice of the Supreme Court cannot see beyond his political patronage is ultimately no different from Trump’s angry Twitter outbursts charging that the “13 angry Democrats” on Mueller’s team are motivated by partisan loyalties. Suggesting that Kavanaugh recuse himself in the absence of a clearly articulable conflict of interest validates and provides fodder for the growing belief that public servants entrusted with upholding the rule of law are driven by politics, rather than facts, evidence and the law. Trump may see the world that way and assume that everyone else does, too, but those of us who believe that our justice system is capable of acting independently should not.
Ensuring the legitimacy of the Mueller investigation means starting with the premise that, in the absence of evidence to the contrary, judges — just like prosecutors and federal agents of all political stripes — aren’t loyal to any person or party, but to the Constitution.