WASHINGTON – Supreme Court nominee Brett Kavanaugh argued in 1998 that President Bill Clinton could be impeached for lying about his affair with Monica Lewinsky.
For much of the next decade he worked inside the White House for President George W. Bush, where he came to the conclusion that “the job of president is far more difficult than any other civilian position in government.”
Thus it was that in 2009, after Barack Obama won the presidency, he suggested that presidents should be immune from criminal investigations and prosecutions, as well as personal civil suits, until after leaving office. “I believe it vital that the president be able to focus on his never-ending tasks with as few distractions as possible,” he wrote.
Kavanaugh’s evolving views on executive power through the last three presidencies are supported by mainstream conservatives today. But they are viewed with suspicion by some who believe the presidency has grown more powerful than the framers of the Constitution intended.
And Democrats are concerned that President Trump’s nomination of Kavanaugh for the Supreme Court is a reward for his espousal of presidential powers. Should he win confirmation, some of them say, he should recuse himself from cases involving Trump.
“The president of the United States should not be above the law. The president of the United States should not be beyond a criminal investigation,” said Sen. Cory Booker, D-N.J. “The president of the United States should not be able to pick the judge that will preside over questions involving his investigation.”
While Senate Democratic leader Chuck Schumer has said the focus of his party’s effort to defeat Kavanaugh will be the judge’s views on abortion and health care, his position on executive power is quickly emerging as a third front in the confirmation war.
Like many conservatives, including most of those on the Supreme Court, Kavanaugh objects to one form of executive branch power – that exercised by federal regulators and, in particular, independent agencies. He is wary of green-lighting most agency rules under a 1984 Supreme Court decision, a process that’s come to be known as “Chevron deference.”
Just this year, Kavanaugh dissented from a U.S. Court of Appeals for the District of Columbia Circuit ruling that upheld the structure of the Consumer Financial Protection Bureau, an independent agency created by Congress in 2010 in the wake of the financial crisis on Wall Street. He called such agencies “a headless fourth branch of the U.S. Government” that “hold enormous power over the economic and social life of the United States.”
For a primary author of independent counsel Kenneth Starr’s occasionally explicit report detailing Clinton’s transgressions, Kavanaugh traveled a long way to his 2009 article in the Minnesota Law Review recommending that presidents be free from prosecution.
“This is not something I necessarily thought in the 1980s or 1990s,” he wrote. But “looking back to the late 1990s, for example, 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.”
Kavanaugh did not suggest that judges treat presidents differently, however. He said Congress should pass a law providing that civil suits and criminal investigations be deferred while the president is in office. If the president acts “dastardly,” he said, “the impeachment process is available.”
The law review article – which also included recommendations for making agencies more accountable to the president and, ironically, streamlining the judicial confirmation process – is certain to be a focus when Kavanaugh goes before the Senate Judiciary Committee later this summer or fall.
Former attorney general Alberto Gonzales, who supervised Kavanaugh in the White House counsel’s office, said the nominee is “probably right” that a sitting president should be immune from indictment and prosecution while in office.
“If appointed and this issue were to come before the court, I think it likely Brett would recuse on this issue,” Gonzales said.
In hundreds of opinions and dissents at the powerful appeals court, Kavanaugh has backed the president’s national security powers and has defended the use of military tribunals for terrorism suspects.
“Especially on national security-related areas, he is likely to be with the more pro-executive power folks on the current court,” said Jonathan Adler, an expert on administrative law at Case Western Reserve University School of Law.
That would not represent much of a change at the high court, where conservative justices usually support the president on matters involving national security. Just last month, the court ruled 5-4 – with retiring Justice Anthony Kennedy in the majority – that Trump acted legally and constitutionally in banning travelers from five predominantly Muslim nations.
On domestic issues, Kavanaugh often rules against federal agencies seeking to regulate commerce and industry. A recent example was his 2017 dissent from the appeals court’s decision not to hear a challenge to the government’s so-called “net neutrality” rule, which sought to block internet service providers from offering faster access to some customers. The Federal Communications Commission reversed the rule this year.
His support for a “unitary executive” model of government, in which the president wields more power, worries some conservatives in an era when those powers have expanded to areas such as immigration and the war on drugs.
“Such an enormous concentration of power is dangerous,” says Ilya Somin, a law professor at George Mason University’s Antonin Scalia Law School. “It enables one person to dictate how all kinds of things are regulated and controlled.”