Brett Kavanaugh, a former George W. Bush administration official turned federal judge, is now President Donald Trump’s nominee for U.S. Supreme Court. Kavanaugh was involved in one of the most contentious presidential battles in modern history as one of the lead authors of the Ken Starr report into President Bill Clinton.
However, in a 1999 article in Minnesota Law Review, Kavanaugh basically disavowed such investigations, arguing that he no longer believes that sitting presidents should be subjected to criminal prosecutions or civil actions while in office. He said such probes are too distracting considering the seriousness of the issues facing the president.
Trump kept his decision for SCOTUS close to his vest throughout the day, stoking the drama, but The New York Times and others then reported that he has narrowed the choices down to Kavanaugh and federal Judge Thomas Hardiman. The Times reported around 3 p.m. Eastern time on July 9, 2018 that Trump had settled on a choice but did not reveal the name. Trump then announced that he had selected Kavanaugh.
More than any of the other candidates, Kavanaugh has been front-and-center when it comes to such constitutional battles.
Here’s what you need to know:
Brett Kavanaugh Was a Principal Author of the Starr Report Who Argued for Broad Impeachment Powers
Brett Kavanaugh was indeed front-and-center in the investigations into former President Bill Clinton over sexual harassment and his honesty about a relationship with an intern, Monica Lewinsky. Some see salience in some of the Starr Report’s arguments at the time over what was allowable grounds to impeach a president.
Kavanaugh was a “lead author” of Ken Starr’s report into Bill Clinton, according to Politico. Kavanaugh, a graduate of Yale University, also worked in the George W. Bush administration and clerked for Anthony Kennedy, before he was named by Bush to the federal bench.
Kavanaugh served in George H.W. Bush’s administration in the solicitor general’s office, which is how he became acquainted with Ken Starr. “Kavanaugh was a protegé of Kenneth Starr,” reports Vox. “He was a principal author of the Starr Report.”
Kavanaugh once argued for broad impeachment powers against a president, according to The New York Times, which reported that he thought a president should be impeachable for “lying to his staff and misleading the public.” Those arguments appear in the Starr Report, The Times reported. In 1998, Clinton was, in fact, impeached.
Brett Kavanaugh Later Had a Change of Heart & No Longer Believes Sitting Presidents Should Be Investigated or Charged
You can see what Brett Kavanaugh wrote on the question of presidential investigation and indictment here.
The article ran in the Minnesota Law Review in 2009, and it’s titled, “Separation of Powers During the Forty-Fourth Presidency and Beyond.” In the article, he argues that various controversies bogging down the Bill Clinton and George W. Bush presidencies stressed the country’s “system of separation of powers and checks and balances.”
One of the headers in Kavanaugh’s article reads, “PROVIDE SITTING PRESIDENTS WITH A TEMPORARY DEFERRAL OF CIVIL SUITS AND OF CRIMINAL PROSECUTIONS AND INVESTIGATIONS.” Kavanaugh began that section by explaining the difficulties faced by any president. “The decisions a President must make are hard and often life-or-death, the pressure is relentless, the problems arise from all directions, the criticism is unremitting and personal, and at the end of the day only one person is responsible,” he wrote.
Kavanaugh concluded, “I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible. The country wants the President to be ‘one of us’ who bears the same responsibilities of citizenship that all share. But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office.”
Kavanaugh indicated he felt differently in the 1980s and 1990s but now regarded his beliefs then as a “mistake.”
“Looking back to the late 1990s, for example, 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,” Kavanaugh wrote.
He then called for civil actions against a president to be deferred for the course of a president’s term. He wanted to extend that protection to criminal prosecution too. “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,” Kavanaugh wrote, decrying such investigations as “inevitably politicized.”
Even criminal investigation is too distracting, wrote Kavanaugh, adding, “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.”
Trump’s Team Is Interested in Brett Kavanaugh’s Writings on the Topic, Reports Say
According to CNN’s Jim Acosta, Trump’s team expressed interest in Brett Kavanaugh’s writings on the indicting a sitting president question as the choice for SCOTUS loomed.
“Trump SCOTUS team has looked at Kavanaugh’s past comments on indicting a sitting president, we’ve confirmed. In 2009, Kavanaugh wrote: ‘The indictment and trial of a sitting President, moreover, would cripple the federal government…'” Acosta wrote on Twitter on July 9, 2009.
Democrats have taken note of the writings, with New York Democratic Senator Chuck Schumer tweeting, “Kavanaugh has taken numerous positions that question his ability to be an indep. check on @POTUS, saying investigations of presidents should be deferred while in office & a president needn’t obey it when he ‘deems the law unconstitutional.’”