A Future Justice Kavanaugh and Executive Privilege

 

If a prosecutor one day decided to indict President Donald Trump, a future Justice Brett Kavanaugh might not be the one to stop it.

Media reports, like this one over at the Washington Post, or this take over at Vox, concerning Kavanaugh’s views on executive power are too quick to assume that he would shield the executive branch during criminal investigations. His writings paint a very different portrait.

Kavanaugh, currently a judge on the District of Columbia Circuit, is a widely discussed candidate to replace Justice Anthony Kennedy on the United States Supreme Court. Kavanaugh has worked extensively in the White House for President George W. Bush. That might lead one to believe that he has a strong view of executive power. But it’s an earlier career experience that may have shaped Kavanaugh’s views, and they are not views that tend to defer to executive power.

To be sure, the media is right on one thing: Kavanaugh has written that criminal investigations of the president can be distractions and should be circumscribed. In other areas, however, Kavanaugh has advocated for breadth in the power to investigate the president, particularly when it comes to denying to the president claims of privilege.

In 1998, Kavanaugh wrote an article for the Georgetown Law Journal on investigations surrounding the president. He lamented, “One major cause of delay in independent counsel investigations has been the repeated assertion of various executive privileges.” He proposed that Congress enact a rule that the president “may not maintain any executive privilege, other than a national security privilege, in response to a grand jury or criminal trial subpoena sought by the United States.”

Kavanaugh’s views were developed at a time when he worked for independent counsel Ken Starr during the investigation of President Bill Clinton. And these views are consistent with his work as an advocate.

For instance, Kavanaugh unsuccessfully argued Swidler & Berlin v. United States before the Supreme Court in 1998. He urged the Court to permit access to those statements made by Deputy White House Counsel Vincent Foster prior to his death. The Court held that the attorney-client privilege protected his statements even after his death. Kavanaugh also argued In re Lindsey, in which the D.C. Circuit agreed that an attorney in the Office of the President in the Clinton White House could be compelled to testify in a criminal investigation.

One might discount Kavanaugh’s arguments in his role as advocate. But we have an unusual alignment between his academic work and his advocacy—he tended to disapprove of claims of executive privilege in both.

Importantly, federal law reserves to the federal court judges a common law role in fashioning evidentiary privileges. A Justice Kavanaugh would likely hold a dim view of executive privilege.

And while Kavanaugh has expressed that he is personally opposed to indicting a sitting president, he has been quite open to the prospect that the Constitution permits it. In his Georgetown Law Journal piece, Kavanaugh wondered whether the Constitution permitted a prosecutor to indict a sitting president. His answer? Maybe. In his view, the matter was “debatable.”

Kavanaugh offered little exploration of the text or structure of the Constitution, but he cited statements of modern special prosecutors and of Alexander Hamilton. He also described practical problems indicting a sitting president. Nevertheless, there was enough doubt in Kavanaugh’s mind about the text of the Constitution that he urged Congress to pass a statute to prohibit a prosecutor from indicting a president until he leaves office. That leaves open the possibility that, in Kavanaugh’s judgment, the Constitution permits indicting a sitting president.

In a 2009 piece in the Minnesota Law Review, Kavanaugh held fast to these views: “Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation,” he wrote. He then qualified that “a serious constitutional question exists” as to whether a sitting president could be indicted.

Again, the Starr investigation may have helped shape Kavanaugh’s views. In 1998, the late Professor Ron Rotunda wrote an extensive memo to Starr explaining why, in his view, the Constitution permitted a sitting president to face criminal indictment.

If a prosecutor did indict President Trump, his challenge brought to the Supreme Court would not necessarily receive the support of a future Justice Kavanaugh. Kavanaugh might find the Constitution permits the indictment. Or, he could conclude it doesn’t—it remains an open question.

It’s a mistake for those on the political left to monolithically oppose every name on President Trump’s list of prospective Supreme Court nominees. Candidates have divergent views on a variety of topics. Kavanaugh’s own writing reflects nuance when it comes to executive power, including views that many Democrats may be inclined to support (at least for today).

In the event criminal investigations of President Trump persist and that the investigation of Robert Mueller extends deep into the Trump administration, a future Justice Kavanaugh, if nominated and confirmed, may be an unlikely ally of many of those who oppose him today.

Derek Muller

Derek Muller is an associate professor of law at Pepperdine University School of Law.

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