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New Supreme Court appointee won’t ‘protect’ Trump

David French of National Review Online beats back one of the sillier criticisms of U.S. Supreme Court nominee Brett Kavanaugh.

There’s a talking point already circulating through the media: Brett Kavanaugh not only “is devoted to the presidency,” he may well have been selected to protect Donald Trump. …

… [T]he basis for this belief is a 2009 Minnesota Law Review article where Kavanaugh argues, based in part on his own experience working with Ken Starr as he investigated President Clinton, that “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.”

And what’s his proposed remedy? He suggested not that judges block investigations of the president but instead that Congress “consider a law exempting a President — while in office — from criminal prosecution and investigation.” He makes this proposal in the same law-review article, by the way, where he also suggests that Congress should assert greater authority over war powers, and he floats the idea of a single, six-year term for the president (an interesting idea, by the way.)

In other words, he was brainstorming policy proposals, not suggesting future legal rulings. …

… But wait. Isn’t that an argument not for an imperial presidency but for constitutionally based congressional supremacy? And isn’t Kavanaugh mirroring Alexander Hamilton’s argument in Federalist No. 69 that the president “would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law”? (Emphasis added.)

Study Kavanaugh’s jurisprudence for any length of time, and you’ll note that he’s not a devotee of the presidency. He’s a devotee of the Constitution, and the Constitution separates powers between the three branches of government. In this case, the Constitution gives the power to Congress to protect the president — it doesn’t insulate the president from criminal investigation and prosecution by its own terms. Otherwise, why suggest legislation?

Mitch Kokai / Senior Political Analyst

Mitch Kokai is senior political analyst for the John Locke Foundation. He joined JLF in December 2005 as director of communications. That followed more than four years as chie...

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