Who Will Rid Us of This Activist Judge?

In the wake of Supreme Court Justice Anthony Kennedy’s retirement, there is so much for Americans, particularly the Democrats to be worried about. After all, him stepping down during the Donald Trump nightmare would shift the Court to the right for the next few decades. Now that Lord Cheetohead has nominated DC Appeals Court Judge Brett Kavanaugh, there is plenty of talk about how his tenure of the court might overturn Roe v. Wade, gut the Affordable Care Act, undermine labor rights, weaken environmental regulations, hurt civil rights, and give more free rein on large corporations to do whatever the hell they want. But while all these issues are very important to consider, it’s not exactly on my mind at the moment.

Before I get to the point, I must acknowledge that during the 1990s, Kavanaugh worked on an independent counsel Kenneth Starr’s extremely zealous team of prosecutors pursuing what they believed to be wrongdoing by President Bill Clinton. For those who were either too young like me or not born yet, this independent counsel investigation into Clinton began with a land deal in Arkansas and eventually ended with a report recommending his impeachment for lying under oath and obstructing justice over his affair with Monica Lewinsky. According to Ken Gormley in his book, The Death of American virtue, Kavanaugh was a particularly committed team player. Since at one point, he wrote a memo to Starr which included the following:

“After reflecting this evening, I am strongly opposed to giving the President any “break”… unless before his questioning on Monday, he either i) resigns or ii) confesses perjury and issues a public apology to you [Starr]. I have tried hard to bend over backwards and be fair to him… In the end, I am convinced that there really are [no reasonable defenses]. The idea of going easy on him at the questioning is abhorrent to me…

“[T]he President has disgraced his Office, the legal system, and the American people by having sex with a 22-year-old intern and turning her life into a shambles—callous and disgusting behavior that has somehow gotten lost in the shuffle. He has committed perjury (at least) in the Jones case… He has tried to disgrace [Ken Starr] and this Office with a sustained propaganda campaign that would make Nixon blush.”

As much as I think Clinton’s impeachment was stupid, I can see the guy’s point on the perjury part and the fact Lewinsky hasn’t been able to escape the infamy of the whole scandal since. Yet, to be fair, men in elected office publicly lie about their extramarital proclivities happens all the time and most usually don’t face any legal trouble whatsoever. Besides, perjury over an extramarital affair doesn’t seem like an impeachable offense compared to, well, making money off the presidency, firing the FBI director while under criminal investigation, ignoring the Emoluments Clause, and possibly colluding with the Russians. Kavanaugh’s memo went on to propose asking President Clinton questions like:

“If Monica Lewinsky says that you ejaculated into her mouth on two occasions in the Oval Office area, would she be lying?

“If Monica Lewinsky says that on several occasions you had her give [you] oral sex, made her stop, and then ejaculated into the sink in the bathroom off the Oval Office, would she be lying?

“If Monica Lewinsky says that you masturbated into a trash can in your secretary’s office, would she [be] lying?”

However, fast forward a decade and Kavanaugh seems to do a 180 on the topic after later working for a president from his own party. From 2001-2006, he served in President George W. Bush’s White House, first in the White House Counsel’s office and later as White House Staff Secretary. In 2006, he was confirmed to the US Court of Appeals for the DC Circuit. And in 2009, he wrote an article that would be published in the Minnesota Law Review. Now this piece addressed several issues related to the presidency and separation of powers. Yet, the most relevant section comes right after the introduction, focusing on civil and criminal investigations of sitting US presidents:

I. PROVIDE SITTING PRESIDENTS WITH A TEMPORARY DEFERRAL OF CIVIL SUITS AND OF CRIMINAL PROSECUTIONS AND INVESTIGATIONS

He then opens here by describing his work for President Bush and how he learned to appreciate “how complex and difficult that job is” and continues (emphasis added):

“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.”
He next calls on Congress to consider passing a law that would relieve some of the burdens and expresses his doubts that investigations of a sitting president can rise above politics.

“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. Criminal investigations targeted at or revolving around a President are inevitably politicized by both their supporters and critics.

“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.’”

Look, I understand that the presidency is a complex and difficult job. But while I may agree that investigations regarding sitting presidents may not be able to rise above politics, that doesn’t mean we shouldn’t excuse them from “some of the burdens of ordinary citizenship while serving in office.” Our country was built upon the idea that presidents must obey the laws and suffer the legal consequences like everyone else. This is especially because the presidency is the highest office in the nation and the fact they can be sued, criminally investigated, and prosecuted like everyone else is a major check on the President’s power. But while the Mueller probe may be politicized among the American public, the rationale behind it such as the FBI investigation on the Trump campaign and George Papadopoulos drunkenly bragging about Russians digging dirt on Hillary Clinton had nothing to do with politics.

Nonetheless, Kavanaugh bemoans the consequences if the sitting president was indicted:

“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.”

Indeed, this is a genuinely unsettled legal question. While Justice Department opinions have typically stated that sitting presidents can’t be indicted, some experts have argued otherwise. The question has never been tested in the courts, but it was revived last year with the scandal over Donald Trump, Russia, and possible obstruction of justice. Special Counsel Robert Mueller seems unlikely to defy Justice Department policy with a legally questionable indictment of Trump. But if he does, the Supreme Court would surely decide on the matter. And since he’s been nominated to the Court, Kavanaugh’s 2009 article on the subject takes on a significant importance.

Kavanaugh goes on to the civil suit arena:

“Even the lesser burdens of a criminal investigation—including preparing for questioning by criminal investigators—are time-consuming and distracting. Like civil suits, criminal investigations take the President’s focus away from his or her responsibilities to the people. And a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.”

This will also likely resonate with Donald Trump, who’s spent an enormous amount of time on the Mueller probe while plagued by other lawsuits as well. Indeed, the question on whether Trump should have to sit for Mueller’s “questioning” is a current discussion topic. If Trump should refuse questioning (which he will), Mueller could subpoena him, which will culminate in a battle likely rising to the Supreme Court.

Kavanaugh concludes by briefly trying to address two possibly critiques on his arguments. First, he says that the president could always be prosecuted after he leaves office. Second, if the president does anything bad, Congress could use the impeachment process.

“One might raise at least two important critiques of these ideas. The first is that no one is above the law in our system of government. I strongly agree with that principle. But it is not ultimately a persuasive criticism of these suggestions. The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office.

“A second possible concern is that the country needs a check against a bad-behaving or law-breaking President. But the Constitution already provides that check. If the President does something dastardly, the impeachment process is available. No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress. Moreover, an impeached and removed President is still subject to criminal prosecution afterwards.”

However, his conclusion falls short on to points. First, waiting until the president is out of office to investigate him doesn’t prevent the damage he may cause during his tenure as well as gives him free rein to abuse his power while in office. Second, while Donald Trump has done really bad things over his presidency and before then, that doesn’t mean Congress will impeach him. Because it’s controlled by the GOP who has no interest to check his power. Besides, Kavanaugh doesn’t address what happens when it’s not yet clear and hotly disputed whether not a president has done “something dastardly” like colluding with Russia to intervene in the 2016 election, or obstructing justice. It appears he’d be happy to leave that to Congress to decide, without any investigation from the executive branch. Now this is disturbing since I consider such investigation from the executive branch necessary before Congress can decide whether to impeach a president.

He concludes the section:

“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. 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.”

Of course, the country loses when a president’s focus is distracted by the burdens of civil litigation or criminal investigation and possible prosecution. But the country loses more when a president suspected of egregious wrongdoing is allowed to abuse his power however he pleases without any way to hold him accountable. Stating that we shouldn’t “burden” a sitting president with civil suits, criminal investigations, or criminal prosecutions because the presidency is a difficult job as it is simply doesn’t cut it. Yes, such processes might be a pain in the ass but they ensure that sitting presidents must answer to the law regarding their actions. If a sitting president doesn’t want to be distracted by lawsuits, criminal inquiries, and prosecution, then he shouldn’t have done what got him there in the first place. This especially goes with a president who believes he’s above the law and can do whatever he damn well pleases without consequence.
So why did Kavanaugh change his mind? Probably because he spent 5 years working for a president from his own party who gave him a big promotion. As he admits in his 2009 article:

“This is not something I necessarily thought in the 1980s or 1990s. Like many Americans at that time, I believed that the President should be required to shoulder the same obligations that we all carry. But in retrospect, that seems 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. To be sure, one can correctly say that President Clinton brought that ordeal on himself, by his answers during his deposition in the Jones case if nothing else.”

I may be no legal expert. But unlike Kavanaugh, I still believe a president should shoulder the same obligations we all carry. And yes, the nation would’ve been better off if President Clinton wasn’t distracted by the Paula Jones sexual harassment case and the criminal investigation offshoots. But to say that prevented Clinton from catching Osama Bin Laden is quite a stretch. However, just because the whole Bill Clinton impeachment circus might’ve been a mistake that made nobody happy, doesn’t mean we should exempt sitting presidents from civil litigation or criminal investigations and prosecution. Donald Trump and his team have been under criminal investigation by the FBI for possible collusion with Russia long before he was even elected to the presidency. And his efforts to stop it like the firing of FBI Director James Comey have only verified suspicions that they did. Or at least saw no problem with it. Besides, Robert Mueller’s team has already either indicted or accepted guilty pleas from 4 former Trump advisers, 14 Russian nationals, 3 Russian companies, a California man, and a London-based lawyer. Furthermore, the US intelligence community and the Senate Intelligence Committee all say that Russia tried to help Trump win the 2016 election and that Russa President Vladimir Putin ordered his government to do so. The real question now is whether Trump and his team colluded with Russia’s effort to sow seeds of division through the internet and running ads to stir up racial tensions.

What Kavanaugh wrote in 2009 about executive power sounds nice to Donald Trump and may be the major reason why he chose the guy to replace Justice Anthony Kennedy. It’s not too far-fetched to assume the Supreme Court may hear an element of the Russia investigation like subpoenaing a sitting president or less likely indicting one. There’s also a strong possibility that Kavanaugh can be one of the justices to decide on such matters. Sure, he advocated passing a law to protect the president from civil and criminal scrutiny but he didn’t say such notion is unconstitutional. Yet, to suggest that a president shouldn’t be subject to a civil suit or criminal prosecution while in office appears to fly in the face of decades of precedent stating that no one, including the president is above the law. While we don’t know if Trump has any criminal exposure at this point, Kavanaugh’s position could influence how he ruled on the appropriateness of any future actions by prosecutors against him. What impact that might have on the Mueller investigation remains to be seen. But should the Supreme Court rule in Trump’s favor that would neutralize the Mueller probe until he leaves office, America is in serious trouble.

Nonetheless, we must acknowledge that Brett Kavanaugh’s entire career has been in service to the Republican agenda. His old writings from the 1990s show that he was certainly a true believer in the Starr investigation before the Bush administration made him skeptical on the wisdom of litigation and investigations involving a sitting president. Donald Trump’s legal team has prepared to argue that the president isn’t obligated to sit for a Mueller interview and has limitless power to shut down the investigation or pardon anyone involved, including himself. Though this argument is basically summed as: Trump isn’t above the law, he is the law. The Kavanaugh from 20 years ago would’ve vociferously disagreed since he urged his boss, Kenneth Starr not to cut Bill Clinton any slack in his inquiry on the Lewinsky affair. When time came to help write the Starr report, Kavanaugh argued for Clinton’s impeachment for lying to his staff and misleading the American public. Had he still held that belief today, Trump would’ve never considered him for the Supreme Court. Yet, after working for George W. Bush, Kavanaugh apparently changed his tune as indicated in his 2009 article for the Minnesota Law Review. Not only did he contend that the president can’t be indicted, he also took his interpretation of executive power one step further by suggesting Congress pass a law allowing the president to defer such investigations until they’re out of office.

Still, I think it’s more likely that his awakening on presidential power during the Bush administration and his 2009 apology for the Starr report conceals more partisan motivations. Should the Russia investigation culminate in a Supreme Court battle, could we expect Kavanaugh to rule Trump’s case impartially and without favor? Or would he rationalize bending over backwards for the outcome he’d want to see? Because from my standpoint, I think he’s an activist judge willing to hold certain views that would be in his party’s favor. And I strongly believe Trump selected him to protect him from Mueller’s Russia investigation. He shouldn’t have seat on the bench of the most powerful court in the land.

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