After being nominated on Monday to fill a soon-to-be vacant seat on the Supreme Court, Bret Kavanaugh will face heavy scrutiny for his past writings and rulings. Specifically, a 2009 article Kavanaugh penned for the Minnesota Law Review will likely draw the ire of Senate Democrats.
The article, titled “Separation of Powers During the Forty-Fourth Presidency and Beyond,” includes a call for Congress to protect the president from criminal prosecution, as well as Kavanaugh’s personal opinion on the impact of the indictment and trial of a sitting president.
“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.
Kavanaugh expressed a belief that such investigations would face inevitable politicization from both ends of the political spectrum, and that “no Attorney General or special counsel will have the necessary credibility to avoid the inevitable charges” that the investigation could be politically motivated.
Kavanaugh concluded that the indictment of a sitting president would “cripple the federal government”:
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.
“Like civil suits, criminal investigations take the President’s focus away from his or her responsibilities to the people,” Kavanaugh argued. “And a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.”
Kavanaugh also argued that suspending prosecution of a president until after that president leaves office would not undermine the fundamental belief that no one should be above the law and that the Constitution already provides a proper mechanism for Congress to keep a misbehaving president in check.
“The President’s job is difficult enough as is,” Kavanaugh wrote. “And the country loses when the President’s focus is distracted by the burdens of civil litigation or criminal investigation and possible prosecution.”
Ultimately, Kavanaugh’s beliefs expressed in the 2009 article focus on how Congress should address a potential issue he sees, and not how the courts should interpret existing law surrounding it. But that likely won’t stop Senate Democrats from grilling Kavanaugh on the issue in his upcoming confirmation hearing.