Brett Kavanaugh

Judge Kavanaugh and Prosecutions of Sitting Presidents

|The Volokh Conspiracy |


Some analysts (e.g., see this Washington Post article) have recently quoted Judge Kavanaugh's law review article (published early in the Obama presidency) criticizing prosecutions of sitting Presidents. I thought I'd quote the entire passage, so people could see it in context:

Having seen first-hand [from working in the White House] how complex and difficult [the Presidency] is, I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible. The country wants the President to be "one of us" who bears the same responsibilities of citizenship that all share. But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office.

This is not something I necessarily thought in the 1980s or 1990s. Like many Americans at that time, I believed that the President should be required to shoulder the same obligations that we all carry. But in retrospect, that seems a mistake. 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. To be sure, one can correctly say that President Clinton brought that ordeal on himself, by his answers during his deposition in the Jones case if nothing else. And my point here is not to say that the relevant actors—the Supreme Court in Clinton v. Jones, Judge Susan Webber Wright, 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, particularly the extent to which it allowed civil suits against presidents to proceed while the President is in office.

With that in mind, it would be appropriate for Congress to enact a statute providing that any personal civil suits against presidents, like certain members of the military, be deferred while the President is in office. 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. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.

Even the lesser burdens of a criminal investigation—including preparing for questioning by criminal investigators—are time-consuming and distracting. Like civil suits, criminal investigations take the President's focus away from his or her responsibilities to the people. And a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.

One might raise at least two important critiques of these ideas. The first is that no one is above the law in our system of government. I strongly agree with that principle. But it is not ultimately a persuasive criticism of these suggestions. The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office.

A second possible concern is that the country needs a check against a bad-behaving or law-breaking President. But the Constitution already provides that check. If the President does something dastardly, the impeachment process is available. No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress. Moreover, an impeached and removed President is still subject to criminal prosecution afterwards. In short, the Constitution establishes a clear mechanism to deter executive malfeasance; we should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions. The President's job is difficult enough as is. And the country loses when the President's focus is distracted by the burdens of civil litigation or criminal investigation and possible prosecution.

This reads to me as simply a policy argument supporting Congressional action, and not a basis for judge-made immunities. But since some have quoted lines from it (usually not focusing on the argument about what Congress should do), I thought I'd quote the whole argument, both for its substantive analysis and for its tone, which strikes me as quite representative of the man.