Bryan Zepp Jamieson

July 10^th 2018

There’s a story going around that the reason Trump picked Brett Kavanaugh as his second nominee to the Supreme Court is that retiring Justice Anthony Kennedy offered to retire now and not after the midterms if Trump picked Kavanaugh to replace him. The thinly-sourced story, broken by NBC, seems unlikely on the face of it. Kennedy may like or not like Kavanaugh, but it’s unlikely he sees him as a continuation of the Kennedy legacy—whatever that is.

Slightly more plausible is the theory that Trump just wanted to annoy liberals. The day after his announcement, he pardoned the Hammonds, a couple of common land thieves who deliberately set fire to publicly-owned federal lands in hopes of making the land worthless for anything other than grazing. He saw their cause as anti-environmental, one of the more suicidal elements of Republican spite.

But the infantile philosophy of “Kiss a Nazi, it really annoys Democrats” could have pertained to any of the names on his showy short list, all of whom were religious whacks who disguised utter contempt for the Constitution in the nonsense jargon of ‘original intent.’ If the Constitution, hotly debated and compromised from the first word to the last, was crystal clear in its intent, what would we need with a Supreme Court?

All of them had appalling Dominionist policies, coupled with a deep, fascistic desire to make Americans the property of corporations.

Another theory going around is that Kavanaugh was willing to swear loyalty to Trump personally as a condition of being nominated. That one is much more credible, because Trump has made similar demands of his other appointees and department heads, including most notoriously James Comey. Kavanaugh would just be Tony Soprano’s Big Pussy (“Please. Not in the face.”). Is Kavanaugh dishonest and dishonorable enough to agree to such an oath in return for the coveted seat? I hope the Senate asks him about that.

No, the main reason Trump selected Kavanaugh over the sad pack of godstruck corporate hacks was because Kavanaugh, and Kavanaugh alone, was on record—repeatedly—of asserting that a sitting president should not be subject to indictment or criminal persecution while in office. It seems a curious stance for a man who played a leading role in the writing of the Starr Report, a damp piece of juvenile pornography (“Daddy, what does ‘analingus’ mean?) that was used to impeach and lynch a sitting president. The Starr Special Counsel’s office leaked like a syphiletic penis, and some believe Kavanaugh to be the starr leaker, particularly the juicy Monica Lewinsky scandal that the Republicans hoped would finish off Bill Clinton.

In the Minnesota Law Review in 2008 Kavanaugh penned an article entitled “Separation of Powers,” in which he wrote:

The result the Supreme Court reached in Clinton v. Jones—that presidents are not constitutionally entitled to deferral of civil suits—may well have been entirely correct; that is beyond the scope of this inquiry. But the Court in Jones stated that Congress is free to provide a temporary deferral of civil suits while the President is in office.

Congress may be wise to do so, just as it has done for certain members of the military. Deferral would allow the President to focus on the vital duties he was elected to perform. Congress should consider doing the same, moreover, with respect to criminal investigations and prosecutions of the 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. 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.”

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.

Even standing alone, the argument is radical. It isn’t enough that a president be shielded from criminal indictment, he argues; the President should be shielded from criminal investigation. Not only would a president be exempt from criminal law; he would be exempt from any inquiry of whether any evidence of criminal activity existed. Under such an arrangement, there could be no investigation into the 1972 Watergate break-in until 1977, when an unchallenged Nixon finally left office.

The appeal to Trump is obvious. It’s his ‘get out of jail free’ card, held by someone he probably regards as his own personal justice. It’s probably the main—indeed the only—reason he picked Kavanaugh.

But there is a drawback to Trump’s fantasy that he’s probably too dim to be aware of, and it’s almost certain Kavanaugh does know what it is, and chose not to mention it to Trump.

Clinton vs. Jones is stare decisis –- standing law –- and while it can be modified by an act of Congress, it cannot be done ex post facto, or after the fact. It could only apply to future inquiries against future presidents. Such a law would not apply to the existing Mueller investigation, or any of its findings.

Given his writings, Kavanaugh would have to rule in a way Trump would not like, not one little bit. That, or he could recuse himself, and we all know Trump doesn’t handle recusals at all well. Although that course of action would reflect better on Kavanaugh.

Congress might pass such a law between now and January (unlikely, since it would require 60 votes in the Senate) and the SC would probably find itself being petitioned for an emergency ruling at that point, or risk a possible revolution. Public tensions would be sky-high.

At that point, the Court would have to decide between law and order, or Trump and chaos.