The Democrats’ indefensible conspiracy theory on Kavanaugh nomination

Democrats are claiming that President Trump nominated Judge Kavanaugh to the Supreme Court because he believes Kavanaugh will protect him from the Mueller investigation. Sen. Dick Durbin tweeted:

[I]n light of the ongoing Russia investigation, is it a coincidence that President Trump picked a nominee who has expressed staunch opposition to criminal investigations of sitting Presidents?

Also:

And just in time, the President has found a Supreme Court nominee who argues Presidents should not be distracted with criminal investigations and prosecutions while in office.

Sen. Chuck Schumer and Corey Booker echoed the sentiment.

They base the accusation on a paper Kavanaugh presented at a 2009 symposium at the University of Minnesota and a law review article based on the paper. In the article, Kavanaugh contended that the nation’s chief executive should be exempt from “time-consuming and distracting” lawsuits and investigations, that “would ill serve the public interest, especially in times of financial or national security crisis.” If a president were truly malevolent, Kavanaugh noted, he could always be impeached.

But does Kavanaugh’s article, properly analyzed, support the hyper-ventilating of Sens. Durbin, Schumer, and Booker?

Two prominent liberal legal analysts think not. One of them is Benjamin Wittes, a fierce critic of President Trump and an ardent defender of Robert Mueller. Wittes happened to have been with Kavanaugh at the University of Minnesota symposium where he presented his own paper. Wittes writes:

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, a liberal Harvard law professor (and author of a fine biography of James Madison), concurs. He says that “properly understood, Kavanaugh’s expressed views actually support the opposite conclusion” than the one to which Durbin, Schumer, Booker and others have jumped.

But didn’t Kavanaugh oppose lawsuits against, and investigations of, U.S. president? Yes, in theory. But Wittes explains:

What the article says is that after having watched President George W. Bush up close for a number of years, serving as staff secretary and as a lawyer, Kavanaugh now believed he had previously underestimated the demands of the presidency and the dangers of distracting the president with civil and criminal matters. And he suggests as a policy matter that “Congress [should] enact a statute providing that any personal civil suits against presidents … be deferred while the President is in office” and that “Congress should consider doing the same … with respect to criminal investigations and prosecutions of the President.”

He writes that “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.” And he adds in a footnote that, “For fairness’s sake, this proposal may also require extension of the relevant statutes of limitation.”

(Emphasis in the original)

Congress has not enacted the kind of law Kavanaugh advocated. And it can be inferred from his advocacy in favor of such a law that he believes, under current law, that a president can be sued and investigated.

Wittes identifies three respects in which Kavanaugh’s article “is not good for Donald Trump.” First, the kind of independent counsel Kavanaugh said he favors “looks a great deal like the regulatory structure under which Robert Mueller serves.” Says Wittes, “this does not bode well for, say, an embrace of [the] argument against the constitutionality of the Mueller probe should the president’s lawyers bring such a claim before a Justice Kavanaugh.”

Second, the article also made 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. And made it at a time when a strong bipartisan consensus against the use of independent counsels had emerged.

Third, Kavanaugh proposed in his 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.” Does Rudy Giuliani know about this?

According to Wittes, the article doesn’t offer any hint as to what Kavanaugh thinks on three key Mueller-related issues that may come before the Supreme Court: (1) Can the president be compelled to testify before a grand jury? (2) Can the president can pardon himself? (3) Is the president amenable to indictment while in office?

But Wittes and Feldman seem to be on solid ground in contending that, if anything, there is more in Kavanaugh’s old article to concern Trump’s legal team than to provide it comfort.

I not sure the 2009 tells us much, if anything, at all, about how Kavanaugh would rule on any matter relating to the Mueller investigation. The main point here is that Democrats are misconstruing the thrust of his old article.

I also find it significant that Wittes and Feldman are defending Kavanaugh (as they see it) on this matter. It confirms that Kavanaugh falls within “the mainstream.”

Reading Wittes’ entire article, it’s clear that he respects Kavanaugh as a highly intelligent, thoughtful man who is willing to engage and to rethink past positions. He also respects the fact that Kavanaugh was arguing for protecting the president at a time (2009) when the president was a liberal Democrat (a point I made here).

Democrats are trying to paint Kavanaugh as a wild-eyed extremist. This view is clearly off-base, as will become apparent to the American people when they see him testify.

Red State Senate Democrats may then pay a price for the disconnect between reality and how their leaders are portraying Judge Kavanaugh.