When the Senate Judiciary Committee interrogates Brett Kavanaugh at his Supreme Court confirmation hearing later this year, he will face questions about the gobsmacking double standard he has adopted over the course of his career for how the law should treat Democratic and Republican presidents.
In short, when Bill Clinton was president, he adopted a maximalist view of the president’s vulnerability to criminal law, then completely reversed himself during the George W. Bush administration.
The history here is important, but it is also a bit distracting. The “evolution” of Kavanaugh’s thinking will tempt Democrats to focus on Kavanaugh’s apparent hypocrisy, but the episode is more clearly a reflection of Kavanaugh’s myopic and reckless judgment than of his partisan reasoning, the latter of which he would surely chalk up to youthful over-exuberance or naivete.
Under what one might call the Kavanaugh principle, the president would have near-limitless impunity, enough for a corrupt president to loot the country, bring the democracy to its knees, and get away with it. It shows such poor judgment on its own terms that it should be disqualifying.
As a young lawyer, Kavanaugh was a senior counsel for Independent Counsel Ken Starr’s investigation of President Bill Clinton. During that time, he made outrageous, far-reaching arguments about the president’s vulnerability to impeachment and the criminal law.
He argued that simply delaying testimony before the independent counsel could constitute obstruction of justice—a standard by which President Trump would face enormous exposure to impeachment and prosecution. He also argued that lying to White House staff and the public are rightfully impeachable offenses.
Then he went to work for President George W. Bush and his views changed radically. By the end of the Bush administration, he’d written a law review article in which he argued that Congress should pass a law immunizing a president from criminal investigation for his term in office.
Kavanaugh attributed his about face to a failure of imagination. He couldn’t fathom the the burdens a criminal investigation might impose on a presidency until he worked for a president, at which point he realized the whole Starr investigation, which he helped to politicize, was wrongheaded. “Having seen first-hand how complex and difficult that job is, I believe it vital that the President be able to focus on his
never-ending tasks with as few distractions as possible,” he wrote. “[M]y point here is not to say that the relevant actors—the Supreme Court…and Independent Counsel Kenneth Starr—did anything other than their proper duty under the law as it then existed. But the law as it existed was itself the problem.”
The total reversal implicates Kavanaugh’s judgment in two ways: First, his inability to fathom the disruptive effect a criminal investigation of a president would have on the presidency suggests a complete absence of the kind of clarity of thinking and imagination judges need to do their jobs well. ‘I held extremely strong opinions about things until I experienced them first hand, after which I saw I was 100 percent wrong,’ is a terrible demerit for a judge.
But just as importantly, Kavanaugh’s revised views shows that his judgment hasn’t improved over the years. He didn’t just soften, but inverted them. Once, he believed presidents should serve out their days on the knife edge between perfection and impeachment and prosecution. Then, he decided presidents should be above the law.
Let’s consider what might happen if “Congress [passed] a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel,” because as of 2009, Kavanaugh had apparently not.
The moral hazard Congress would create by passing such a law would be severe enough to tempt even well-meaning presidents into lawbreaking, but would give a corrupt one tyrannical power. He could enlist aides and allies to commit crimes on his behalf and then pardon them. He could commit crimes on his own, destroy the evidence of the crimes, and pardon himself. These options are technically available to presidents under current circumstances, and because he benefits from an unusually supine Congress, Trump is actually toying with them publicly. But a president who had immunity from criminal investigation could buy off members of Congress interested in conducting oversight or impeachment proceedings with cash. He could do the same to federal investigators who might take up the case after his term ended. Or he could just start disappearing people who posed him any long-term risk. A president so shielded from congressional checks could probably steal elections, for himself, his congressional party, and his successor.
None of this occurred to Kavanaugh, who simply brushed off hypothetical concerns about a “bad-behaving or law-breaking President” by noting, “the Constitution already provides that check. If the President does something dastardly, the impeachment process is available.” It is—unless, of course, it isn’t.
The irony is that in the years between when Kavanaugh was running wild with Ken Starr, and when he decided no future president should be troubled with meddlesome law-enforcement inquiries, the American system actually responded to the Starr-Kavanaugh problem quite reasonably: Congress allowed the independent counsel statute to expire, and the Justice Department drew up special-counsel regulations—the ones Robert Mueller is now operating under, with much more restraint than Kavanaugh ever did—so that future presidents would still fear lawbreaking. Kavanaugh relegates the expiration of the independent counsel statute to a footnote, and fails to mention the special-counsel regulations altogether.
As a man of poor imagination, Kavanaugh may not have worried, as the Founders did, about someone as lawless as Trump some day winning the presidency, but now that Trump has, Kavanaugh’s judgment comes into question once again: Would he revise his views for a third time? Judges don’t typically get three bites at the apple. Have his concerns about the “time-consuming and distracting” nature of “lesser burdens of a criminal investigation—including preparing for questioning by criminal investigators” been allayed at all by watching Trump play golf almost every weekend at his private clubs, and live tweet cable news for hours on end? And if not, does he think Robert Mueller’s investigation should be disbanded?
If, as the saying goes, hypocrisy is the tribute that vice pays to virtue, then at least hypocrites can be said to have good judgment that they choose to ignore. The issue with Kavanaugh is that he seems completely reactionary, bouncing from one indefensible position to another, without applying any judgment whatsoever. Senate Democrats should take note of that, because explaining away hypocrisy is easy, but explaining away a fatal blindspot like this is not.