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Judge Kavanaugh and Prosecutions of Sitting Presidents

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.

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  • Bob from Ohio||

    "(published early in the Obama presidency)"

    Very sneaky of him, anticipating Trump as president and a S/C opening in 2018.

  • bernard11||

    He didn't have to anticipate Trump at all.

    He just had to anticipate a Republican President at some point in the future, and think that he himself might be a candidate for the Supreme Court then. An opening sometime was certain, after all. If the timing didn't work, then nothing was lost by reassuring anyone listening that he thought it a bad idea to indict a President.

  • Lee Moore||

    Wouldn't he have had to anticipate a Republican President who doesn't know that it's Congress that writes the laws ? So it'd probably have to be Trump he was anticipating, and if he's that smart then he probably desreves to be on the Court.

  • bernard11||

    Immaterial, Lee.

    The Supreme Court is going make the decision.

  • nonzenze||

    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.


    From another perspective, his opinion means that President (and those around him) can do anything short of 'dastardly' without consequence, so long as he doesn't get impeached.

  • PubliusVA||

    Without immediate consequence.

  • bernard11||

    Right, Publius.

    Just delay the investigation a few years. Nothing will happen to evidence, witnesses, people familiar with the case, and so on.

  • James Pollock||

    That is the way the federal government is set up... the President is immune from criminal prosecution while President, so prosecutors either need to wait for an election or an impeachment and conviction to have the guy who used to be President fall into their clutches.

  • Joe_JP||

    How far does this have to be taken, really?

    Say a President commits a criminal misdemeanor. Can they be prosecuted and given a monetary fine? Some petty thing, maybe something like $250 or whatnot. I think we can imagine they can without the whole federal governmental system in place be put into jeopardy.

    This is all supposition, really, since with the usual ability to have prosecutorial discretion even for more serious crimes in many cases & there not likely being an opening for prosecution for something blatant like someone beating up their spouse or something, it is not likely to happen.

    But, if it did, I don't think immunity in all cases need be in place, especially if the President agrees to some sort of plea deal. This might be seen as waiving immunity but the argument often is expressed as if it simply is not there at all, even to be waived.

  • Dilan Esper||

    Whatever the rule is (and it seems to me it isn't settled), it isn't about the petty misdemeanor. The petty misdemeanor could go either way. It's about the serious case.

    The argument for the sitting President not being indictable, to my mind, has less to do with interference with the duties of office (I think Clinton v. Jones settled that) and more to do with the political question doctrine-- the Constitutional text sets out a procedure for holding Presidents accountable for legal transgressions, and it implies (although Congress has no obligation to follow it) a high burden in recognition of the fact that the Presidency is important and we don't want removals based on mere partisanship. Courts shouldn't get involved with such things (because of the textual commitment to another branch) and can't (because it's Bush v. Gore on steroids-- almost every judge and juror would act as a political actor in such a situation).

    On the other hand, given impeachment is in reality basically impossible when the President's party has enough votes in Congress, it seems like Presidents have de facto immunity while in office, which seems wrong too. I don't know the right answer here.

    But whatever the right answer is for serious crimes, the misdemeanors you mention just tag along.

  • James Pollock||

    "given impeachment is in reality basically impossible when the President's party has enough votes in Congress"

    That's a cynical point of view. A politically-motivated impeachment is dead unless the party that is politically-motivated to impeach has the votes to impeach in the House and (ideally) the votes to convict in the Senate, but there is still the possibility that an impeachment could arise from, you know, actual, provable high crimes and misdemeanors, such that a party that shielded the criminal from removal from office would themselves be removed from office come election time. Nixon didn't resign because there weren't enough Republicans in Congress, he resigned because they could prove he was guilty.

  • Stephen Lathrop||

    I suggest that under-appreciates the problem. Nixon resigned not just because they could prove he was guilty, but also because Republicans expected their base to condemn Nixon for his guilt. If a President somehow enjoys support from a base which doesn't care about his guilt—and just a notable plurality will do—it is by no means clear other members of his party will go against their own electoral interests to pursue either justice or the good of the nation.

  • Brett Bellmore||

    But you have to hypothesize a party whose base doesn't care if it's officeholder is a criminal. Not just one which merely requires that the crime be serious and proven.

    I mean, it's pleasant to think the other side monsters, but you shouldn't really assume it without awfully good evidence.

  • David Nieporent||

    I mean, it's pleasant to think the other side monsters, but you shouldn't really assume it without awfully good evidence.

    Hmm. In 2018, where could one possibly find awfully good evidence of a party that doesn't care if its officeholder is a criminal? Such a mystery. Where would one look?

  • bernard11||

    It's not a hypothesis, Brett.

    Trump supporters in fact do not care. You don't care yourself.

  • Brett Bellmore||

    No, I'd care very much if he had been proven to have committed a crime.

    Now, go prove it.

  • bernard11||

    Except there is no proof you wold accept.

    You do nothing but make excuses for everything Trump does. I'm sure you'll find some no matter what.

    Now, go prove it.

    I'll leave that up to Mueller, if Congress, and Republicans in general, will let him continue his work. All I hear from them is a lot of screaming about a "farcical investigation," (see M.L.) and "time to wrap it up (see "Benghazi" Gowdy and Mike Pence).

  • Brett Bellmore||

    "Except there is no proof you would accept."

    That's what I said: It's pleasant to assume the other side are monsters.

  • bernard11||

    Look in the mirror, Brett, with all your talk of revolution, of "the march through the institutions," and generally inflammatory rhetoric, do you truly profess innocence of assuming your political opponents are monsters?

    There is, by the way, ample evidence that Trump is a monster, and those who ignore or deny that are close. He's a kidnapper, a deadbeat, a bigot, an ignoramus, a pathological liar, etc.

  • Krayt||

    But that's part of the design for this process.

    Removal from office is a major coup-like activity, so you better have most of Congrsss on board. I.e. by design, a lot of the president's party need to want to get him gone, and presumably because of tje seriousness of the crime.

    Not removing Clinton for lying about sex was the right thing to do. For Trump, lying about Stormy Daniels or being peed on might be in the same boat. But striking a pre-deal with the Russians to ease sanctions on the elite in exchange for easy zoning and approvals for Trump Moscow towers is not.

  • Stephen Lathrop||

    Krayt, your comment is okay, but I wish you had done without "coup-like activity." That's not what impeachment is like, that's what impeachment is in place to avoid. Worse, congress people aren't all especially reflective, stiff in the backbone, or reflective about the Constitution. But they are the ones with their hands on the safety valve. No matter what the proper result might be, it can't be helpful while considering it if some of them conflate using legitimate process with a coup d'etat.

  • Dilan Esper||

    This is part of my long continuing series of "James Madison was an idiot". In this installment, Madison created winner-take-all, first past the post, state by state institutions that would ensure that there would be only two strong political parties at any time and power would alternate between them. Then, he and the other framers condemned parties (what they called "factions") and created institutions that would never work in a partisan environment (such as impeachment).

    Impeachment is the ultimate party line vote. There is absolute discipline. You do not vote against your party's sitting President unless either (1) it is a free, non-outcome determinative vote or (2) the party leadership has decided to dump the President.

    There is no such thing as "high crimes and misdemeanors". That means whatever a House majority and Senate supermajority says it means. It's a political issue.

    People have to accept that there is no way to take certain things out of partisan politics. As long as we have a 2 party system, there is no objective standard when it comes to crimes of the leader of one of the two parties. You don't like this? Amend the Constitution and empower third parties. It will still be political but then the third parties can act as powerbrokers (and perhaps apply a more independent standard).

  • Brett Bellmore||

    It isn't true that impeachment can't work with parties. Nixon really did resign because he would have been impeached, and I assure you there were political parties in the 1970's.

    It can't work if only one of the parties is convinced the alleged crime really happened, and really is serious. Republicans were persuaded Nixon was guilty, and guilty of serious offenses. Burglary of the opposing party, for one.

    Democrats couldn't be persuaded that Clinton's crimes were serious. Now, I think that's because he did a sufficiently good job of obstructing justice, but in a hypothetical world where all the more serious allegations against him could be publicly proven, instead of just being reasonable inferences, he'd have been toast.

    The obstacle to impeaching Trump at this point is that he hasn't been proven guilty of, well, pretty much anything. Democrats are just assuming he's guilty, because there's an "R" after his name.

    If the time ever comes when they can prove that he actually conspired with Russia to rig our elections, or something like that, he's doomed. Because Republicans would care. They just demand proof, instead of assuming his guilt.

  • Dilan Esper||

    Nixon falls into the "own party leadership decided to dump him" exception. That's exactly what happened-- party elders went over to the WH and told him that they were dumping him, so he resigned.

    It's important, though, that the reason they decided to dump him wasn't because his conduct met some abstract standard of high crimes and misdemeanors-- it was because the political cost of supporting him was too great.

    Similar with Clinton. I will assure you there were plenty of elected Democrats who thought Clinton's misconduct was plenty serious. Some of them spoke in the Senate in favor of a censure. But the party leadership decided the political cost of dumping him outweighed the cost of supporting him. It had nothing to do with how "high" his crime or misdemeanor was.

    Finally, I really have no idea if Republicans would ever decide to dump Trump. It's a total hypothetical. So far, though, the political cost of any such effort would be huge.

  • Brett Bellmore||

    And why do you suppose the cost of supporting Nixon, but not Clinton, was too high to risk?

    Maybe because in one case the members of the President's party thought the crime was serious and provable, and in the other case, not?

  • bernard11||

    Or at least, one case was serious, the other not.

  • Rhymenoceros||

    Not always strictly party line: Specter voted Not proven during the Clinton impeachment. That's one at least.

  • James Pollock||

    "Democrats couldn't be persuaded that Clinton's crimes were serious."

    He was maneuvered into lying under oath. That's serious. But it was a question he never should have been asked under oath, and the subject of the lying wasn't important (to anyone but Mrs. Clinton, who presumably was already aware of the truth.)

    This meant that it wasn't serious enough to make him stop being President. It's serious enough to, say, surrender his license to practice law, had he intended to go into practice.

    See, Republicans of that era liked to pretend that marital fidelity was an important characteristic in a public official. Democrats mostly figured that was the spouse's business. Now that their guy has a worse history than Clinton, they've stopped pretending that marital fidelity matters to them.

  • Brett Bellmore||

    "But it was a question he never should have been asked under oath,"

    He signed the law that opened the door to being asked that question under oath. Signed it proudly at a public signing ceremony. Of all the 300 odd million people in the US, there are a few hundred who have no standing at all to complain of that sort of question being asked them under oath, and he's one of them. (The others are/were members of Congress.)

  • James Pollock||

    "He signed the law that opened the door to being asked that question under oath."

    Don't care. He was maneuvered into the question, and it wasn't one that needed an answer. The point of asking the question wasn't to learn the answer to the question, it was to force him to either lie or admit something private, both of which were expected to benefit the questioner(s). Since I didn't care what the answer to the question was, I don't much care that he lied about it.
    In much the same way I don't care if a dude who's really 5'10" claims to be 6'2", or a woman that weighs 130 claims to be 115.
    Let my try a different approach of explaining it.
    Suppose a woman lies about her age. If she's 34, and is claiming to be 29, I don't care. If she's 16, and she's claiming to be 19 so she can work in a porn film, then I care a little more. If she's 20, and she's claiming to be 21 because she's on trial for trying to buy a beer in a bar, then I care. See the differences?

  • Brett Bellmore||

    Yeah, you don't care that he was hoist by his own petard. But it was still his own petard, so I don't give a damn about the alleged injustice of it all.

    He didn't have to lie under oath. He didn't have to suborn perjury by others. He didn't have to have his staff running around destroying evidence and intimidating witnesses, like a well oiled machine that had done it many times.

    For that matter, he didn't have to cheat on his wife. But his wife was Hillary, so I can cut him some slack there.

    He didn't have to do any of it, but he did, so I don't weep for him. He was guilty as hell of what he was charged with, and many things he wasn't.

    And Democrats didn't think it was serious enough to remove a sitting President, so he survived.

    The bottom line here is: Impeachment works if you can prove something the President's own party finds offensive.

  • bernard11||

    Sure. They demand proof.

    What a load. They are mostly trying to stop the investigation, lest it provide proof.

    90% of Republicans are Trump idolaters, like you. Hey, tax cut, Gorsuch, Kavanaugh. Who cares about anything else. There is zero chance the Republican caucus in the House wold even bring up impeachment short of an actual videotape of Trump committing murder.

    Your faith in your party is touching, Brett, but it's also incredibly naive.

  • Smooth Like a Rhapsody||

    Speaking of touching and naive:
    Bernard, let's assume that the Dems take the House next January; let's further assume that they don't care about the makeup of the Senate, and therefore about the actual outcome of an impeachment.
    Now: what, based on what we KNOW TODAY could any articles of impeachment possibly allege that would convince a reasonable person that they are worth more than toilet paper?

  • bernard11||

    what, based on what we KNOW TODAY could any articles of impeachment possibly allege that would convince a reasonable person that they are worth more than toilet paper?

    Based on what we - the general public - knows today there are no grounds for impeachment. Based on what Mueller knows today, and may well learn in the coming months, there cold easily be such grounds.

    That is precisely the reason Republican toadies want the investigation to stop.

  • bernard11||

    Let me add that should any of the shenanigans around the Trump Foundation rise to the level of tax evasion that would be grounds for impeachment.

    (Yeah, I know. Clinton Foundation, blah, blah, blah. Whatever. It doesn't make Trump innocent.)

  • Joe_JP||

    I understand drawing that line but it is a tad bit hazy especially given the nature of "felonies" these days.

  • ||

    Yes it does but it is not another perspective. It is part of the argument.

  • EscherEnigma||

    Not really, it means that they can do anything *period*. How will you know if they did something "dastardly" if you can't investigate it? How is Congress going to impeach if no one can gather evidence first?

    He would cripple the very investigative apparatus that would reveal if the president *is* doing something dastardly.

  • Brett Bellmore||

    This gets back to Congress's power of "inherent contempt", last used during the Teapot Dome scandal. They can investigate, themselves, and toss anyone who doesn't cooperate in a cell in the basement.

  • Brett Bellmore||

    This gets back to Congress's power of "inherent contempt", last used during the Teapot Dome scandal. They can investigate, themselves, and toss anyone who doesn't cooperate in a cell in the basement.

  • bernard11||

    Oh right. Congress is going to investigate.

  • Brett Bellmore||

    No, they're not, but if they gave a damn they could.

  • bernard11||

    I have to agree, Brett.

    The current Congress is about as interested in investigating Trump as they are in walking barefoot on hot coals.

    Wonder why?

  • Brett Bellmore||

    They weren't serious enough about investigating Obama to have actually enforced their subpoenas themselves, and it wasn't because Republicans secretly loved Obama.

    They're not really motivated about anything which lacks the potential for graft and kickbacks, is my explanation. Everything else is just theatrics.

  • Don Nico||

    EE. it is rather simple. Congress has the ability and the duty to investigate.

    Also only Congress (or a coup d'etat) can remove the President from Office.

  • EscherEnigma||

    If he was just saying that a criminal case cannot remove a president from office, that would be one thing (and far less controversial). But he's arguing that a sitting president cannot even be investigated. So all the work that would convince Congress that there's something worth them investigating is blocked before it can begin.

  • James Pollock||

    An immunity from civil proceedings would have to be conditional on the President placing his (or, someday, her) personal business interests in trust for the duration of their service, I would think. I mean, we used to expect this anyway, but ..

    Besides the obvious abuse-of-power concerns of a person running a business immune from civil suit, if the President has time to run a business while also being President, the argument Judge Kavanaugh is advocating falls flat.

  • Brett Bellmore||

    More like, "We expected it for a while, after not expecting it for most of the nation's history."

    But, yeah, I think that, while as a procedural matter Presidents should be accorded some scheduling flexibility, and judges should take their obligation to sanction frivolous actions very seriously in the case of actions against Presidents, justice delayed is justice denied. We have Presidents, not kings.

  • James Pollock||

    "More like, "We expected it for a while, after not expecting it for most of the nation's history."

    Having not been alive for most of the nation's history, I was not expecting ANYTHING during that time period.

  • PubliusVA||

    So by "we used to expect this" you meant "I, personally, used to expect this"?

  • Brett Bellmore||

    Sorry, I should have used sneer quotes around "we". I had no such expectation.

  • James Pollock||

    So, by "we used to expect this" I meant "we used to expect this".

    You raised a different question, which had a different answer. Some people are older than I am, and their expectations would cover some of the period you refer to.

    No part of "we", however, had any expectations in 1790. I think I'm safe on sticking with that.

  • Careless||

    No part of "we", however, had any expectations in 1790.

    Why wouldn't your "we" be "Americans"? That's certainly the way I read it. Every American ever.

  • James Pollock||

    Necro-Americans may still vote from time to time, but they no longer hold any expectations about anything, including about present-day politics.

  • mse326||

    The President himself being immune presumably does not mean the business, which is a separate legal entity, is immune.

    I understand you are likely considering something where the President does something in that capacity to benefit the business so that the business isn't really guilty of anything. But I'm not sure that is a civil violation by the President either. Conflict of interest? Absolutely. By I don't know what law would be violated. It seems that any action where the President can be considered to have committed a civil wrong likely means the business did somewhere, too.

  • bernard11||

    Don't worry. Kavanaugh will get around to that soon enough.

    Besides, it's a distinction without a difference. If Trump is the main owner of an LLC, for example, it would be hard to investigate the LLC without talking to Trump.

  • Eddy||

    So he thinks Congress should pass a law.

    And presumably he'd consider such a law constitutional.

    Does his article tell us what he'd do as a judge in the absence of a Congressional statute?

  • James Pollock||

    Well, we know that the President is obsessed with personal loyalty to a degree normally associated with third-world dictators, so surely he believes the judge will go his way if confirmed.
    Whether there's a real meeting of minds, or just another person who's learned to tell him what he wants to hear, is not at all clear.

  • damikesc||

    Well, we know that the President is obsessed with personal loyalty to a degree normally associated with third-world dictators

    ...yet it was his predecessor who never seemed to have anybody ever speak out against his policies in his administration ever. That's just a coincidence, I bet.

  • James Pollock||

    So the reason he's so obsessed with personal loyalty is that the last guy earned it from HIS administration, is your assertion?

  • TW||

    Actually the personal loyalty came with the Nobel Peace Prize.

  • Don Nico||

    yes he does.

    Only the Congress can grant temporary immunity, not a judge or a court.

  • Don Nico||

    yes he does.

    Only the Congress can grant temporary immunity, not a judge or a court.

  • bernard11||

    Well, we know he's prepared to toady to Trump.

    "No president has ever consulted more widely or talked to more people from more backgrounds to seek input for a Supreme Court nomination."

    Really? Kavanaugh really thinks that, or was this just ass-kissing?

    I mean, even after allowing for bit of a BS quotient in these speeches this is really over the top, especially in circumstances where he might be called on to rule on the President' immunity, or lack thereof, from criminal and civil actions.

    This sort of thing is de rigeur for the cabinet, but no less disgusting nonetheless.It's especially bad from a SCOTUS nominee.

  • swood1000||

    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.

    But what if evidence is submitted to the House of presidential malfeasance which, if true, would justify impeachment? Is the House to be prohibited from investigating these charges? Wouldn't it want to engage an investigator similar to Robert Mueller? Can the president really be insulated from this type of inquiry? It would, however, disallow a purely judicial inquiry.

  • ||

    "The impeachment process is available".

  • arch1||

    A process which renders judgement but precludes investigation? Sounds like ready, fire, aim.

  • PubliusVA||

    Presumably any exemption from investigation enacted by Congress would apply to investigation by the executive branch, not Congress' own power to investigate.

  • arch1||

    That makes sense, thanks.

  • James Pollock||

    Congress has a habit of exempting itself from laws that apply to everyone else, as a separation of powers thing. The President would be put in a position of supervising Congress, via whatever investigatory agency was checking for compliance with the law.

    Sometimes they have to come back and revisit, and place themselves under the same restrictions, only under penalty of expulsion from Congress rather than criminal prosecution. Ask Senator Packwood how that works.

  • Brett Bellmore||

    I think it's more of a "because we can" thing, than a separation of powers thing.

  • Rossami||

    Impeachment is neither a criminal nor a civil matter. It is a third category altogether. Insulating a president from civil and/or criminal investigation would have no effect on any potential investigation for impeachment.

  • James Pollock||

    One of the permissible causes of impeachment is "high crimes", which rather makes it sound like impeachment could be treated as a special criminal procedure. But that way lies madness. Impeachment is a political process, not a judicial one.

  • swood1000||

    I think that Kavanaugh in his article had in mind disallowing the Paula Jones sexual harassment case and its criminal investigation offshoots. That would have removed the lying under oath portion of the Ken Starr inquiry, but not the investigation into the suicide death of Vince Foster and into the Whitewater real estate investments.

  • bernard11||

    But he was very much on the other side in that matter.

  • Scarecrow Repair & Chippering||

    It's a shame ordinary people can't get the same deferral while working on vital projects for their employers or families. Working on year-end financial reports? Remodeling the kitchen? Postpone the charges!

    I understand the sentiment, but where does it stop? How far down the ladder do you get before some flunky's work is not vital enough to postpone charges? What if someone who does matter is depending on that flunky's report as part of a bigger more important report for someone more important?

    There is no accountability and no repercussions for postponement, while memories fade, evidence deteriorates, and victims have justice delayeddenied.

    And if you do throw in some suitably scary repercussions, such as loss of pension or double the sentence, prosecutors and juries and judges will just be that much more reluctant to press charges or convict when the outcome seems so out of proportion.

    The real problem is indicated by the same answer that accountant or kitchen remodeler would be given: actions have consequences; don't put all your eggs in one basket; build in some redundancy, whether that is other accountants or friends and family who can step in. Make the vice president part of the process, not just a figurehead bench warmer. Activate that chain of succession. And if the charges prove false and politically inspired, toss in some penalty for that.

    But putting a certain few figures beyond the law is just a new form of nobility.

  • Eddy||

    Yes, the 25th Amendment allows the Pres to turn things over to the Vice President if he's so busy fending off criminal charges he can't do his duties.

  • Bob from Ohio||

    "beyond the law"

    He was arguing for deferring the charges, not an absolute or forever immunity.

    "accountant or kitchen remodeler"

    There are hundreds of thousands or even millions of such people. Only one president.

    To enable one prosecutor to remove [even for a temporary time] the choice of the people is fraught with negative consequences.

    Under your views, any local district attorney can bring a charge.

    And what happens if the president is found guilty and sentenced to prison but the Senate will not remove for whatever reason?

    Impeachment and elections are the remedy for presidential crimes.

  • Eddy||

    "There are hundreds of thousands or even millions of such people. Only one president."

    Who has almost certainly got a Vice-President waiting to step in during a crisis. (and a Vice Pres can be indicted if Agnew's case is anything to go by)

    Historically, I observe that ordinary prosecutors (as opposed to the "special" kind) seem hesitant to prosecute Presidents, either from intimidation or because the Pres is squeaky clean, decide for yourself.

  • Bob from Ohio||

    Things change. The Mueller investigation is satisfying The Resistance for now. If Trump is not pulled down by him, how long until a NY criminal prosecution is brought?

    And if NY does so bring it, the next Dem president from a "red" state is going to be indicted too.

  • James Pollock||

    "The Mueller investigation is satisfying The Resistance for now. If Trump is not pulled down by him, how long until a NY criminal prosecution is brought?"

    Considering that there were some being bandied about before he even took office, because he's had some super-deceptive businesses (Trump "University") and chose not to put his businesses in trust. Before he took office, he talked into an open mic about how he liked to sexually harass women, and has openly talked about murdering people and getting away with it, so it's probably only a matter of time until he Cheneys his lawyer on some golf course somewhere (not necessarily in NY).

  • Rossami||

    I am reluctant to rely on the "but the Vice-President" argument.

    First, the VP is every bit as susceptible to politically-motivated challenge and distraction as the President. The VP-as-backup plan slightly delays but does not stop the potential for abuse by those intent on derailing the then-current administration.

    Second, that plan ignores the possibility that the VP him/herself is involved in the prosecution in order to advance his/her chances at political power. We have become used to thinking of the VP as a sockpuppet for the President but you don't have to go very far back even in our own history to find examples of VPs with their own naked ambitions.

  • Eddy||

    The Vice President is someone chosen or at least nominated by the President himself - why not let the President bear the consequences of picking a bad VP?

  • Don Nico||

    not really

  • Soronel Haetir||

    I think a more interesting question would be a state prosecution, where would Congress' constitutional authority to require deferral of a state prosecution against a sitting president for a state offense be located?

    I can see a strong argument for such a federal policy as a federal prosecutor would in effect be going after the boss, but a state prosecutor is an entirely different situation. And honestly, I believe requiring deferral of state civil proceedings would also be problematic for much the same reason (that is, lack of Congressional power to interfere with state courts).

  • Bob from Ohio||

    "where would Congress' constitutional authority to require deferral of a state prosecution against a sitting president for a state offense be located"

    Article II, Section 4 provides for impeachment as the sole way to remove from office. A ban on state prosecutions would be a necessary and proper method to preserve against a de facto removal.

    "If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect." McCulloch v. Maryland, 17 U.S. 316

  • Brett Bellmore||

    The memory is vague, but didn't one of our early Presidents restrict his travel in order to avoid arrest in one state?

    My own opinion is that Article 1 explicitly grants members of Congress quite limited immunity. So the authors of the Constitution were perfectly capable of handing out immunity if they intended it. Were they going to give a President greater immunity than Congress, and do it by mere implication? Nah.

    I quite understand the argument that it would be a good idea. But plenty of good ideas aren't actually to be found in the Constitution. And this is one of them.

  • Bob from Ohio||

    "President greater immunity than Congress,"

    Its not greater and its not immunity. It would be a postponement

    The speech and debate clause offers 100% complete and forever immunity for acts which fall under it's protections.

  • Brett Bellmore||

    You missed part of the speech and debate clause, I think.

    Article I, Section 6, clause 1: "The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."

    That's not remotely absolute immunity. It's only postponement of arrest while in session or traveling to and from the session.

  • Bob from Ohio||

    That sentence has two protections. 1. Cannot be arrested going to or from a session except for [limited then, now huge] exceptions and 2. speech and debate clause

    "for any Speech or Debate in either House, they shall not be questioned in any other Place."

    is an absolute immunity. If Senator X says something on the floor or in committee, they cannot be prosecuted or civilly sued.

  • Brett Bellmore||

    We can argue about how great absolute immunity concerning speech in a limited context is, compared to 4 years of not being subject to normal criminal law, but my point stands: Congress has immunity, it was explicitly granted. The authors of the Constitution knew how to come right out and SAY they were giving somebody immunity.

    I take the fact that the Constitution is silent on the question of Presidential immunity as evidence he lacks any, for that reason.

  • swood1000||

    I take the fact that the Constitution is silent on the question of Presidential immunity as evidence he lacks any, for that reason.

    And Kavanaugh agrees with you, which is why he calls for legislation.

  • James Pollock||

    "I take the fact that the Constitution is silent on the question of Presidential immunity as evidence he lacks any, for that reason."

    I'm not so certain. They granted immunity to Congress explicitly because they had experience with colonial legislators being harassed by agents of the Crown, and in their separation of powers, all the agents of the federal government work for the President. So the wanted to make sure that the President didn't start getting feeling royal by, say, rounding up the Congressionals who opposed them and charging them with trumped-up charges in order to influence the legislature.

    They didn't forsee a deep state of people who take their bureaucracy so seriously that they'd conduct a real investigation of a sitting Prez.

  • Brett Bellmore||

    Quoting Ruth Sullivan,

    "One of the so-called maxims of statutory interpretation is expressio unius est exclusio alterius: to express one thing is to exclude another.

    "The maxim reflects a form of reasoning that is widespread and important in interpretation .... the a contrario argument ... negative implication ..implied exclusion ...

    "An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within the ambit of its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature's failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied."

    If the Constitution expressly grants immunity in one case, the fact that it is not mentioned in another would normally be taken to mean it wasn't granted.

  • James Pollock||

    Brett, maxims are assumptions. You know what happens when you assume?

    If the President commands all the investigators, then the President has immunity if he wants it. To whom do all federal officers ultimately report?

  • Brett Bellmore||

    If he had immunity, he wouldn't NEED to tell the federal prosecutors to lay off him. They'd have no choice in the matter.

  • Soronel Haetir||

    I could go with this except for the fact that by its own text the N&P clause applies to the enumerated list of congressional powers, not other sections of the constitution.

  • mse326||

    "The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof"

    I personally agree with Brett's analysis, but the N&P Clause is not limited to enumerated Article I Section 8 powers.

  • nonzenze||

    Presumably the President can remove most suits to Federal Court, at which point Congress can then make the rules?

  • PubliusVA||

    Only civil suits, and only if there's some kind of federal jurisdiction, but not state prosecutions.

  • James Pollock||

    The president already has command of the federal bureaucracy and the federal military forces, and has the authority to take command of state militia. How, exactly, does a state court assert jurisdiction over a recacitrant President?

  • PubliusVA||

    Good question, but it's a separate question from whether the president can remove a state prosecution to federal court, which he cannot.

  • James Pollock||

    You say "cannot" but can't point to anything that enforces that "cannot", which means that by "cannot" you mean "hasn't yet".

  • nonzenze||

    Good point.

  • apedad||

    This is a nice lawyer-lockerroom discussion but it ain't happening.

    And how would this bump up against the Crime Victims' Rights Act?

    Why should victims of a President's alleged crime be forced to wait for judicial/civil remedies?

  • PubliusVA||

    "And how would this bump up against the Crime Victims' Rights Act?"

    Depends on what the law creating presidential immunity that is passed by Congress says. It would be later in time and could override the CVRA if Congress so chose.

  • James Pollock||

    Recall that the default position is that victims of torts committed by federal officers cannot sue unless Congress specifically authorizes such suits.

  • David Nieporent||

    Recall that the default position is that victims of torts committed by federal officers cannot sue unless Congress specifically authorizes such suits.

    That only applies to torts committed while performing their duties as federal officers, not private acts.

    The temporary immunity Kavanaugh was contemplating would apply to purely private acts.

  • Joe_JP||

    There already is in various opinions a recognition that the executive has special needs that have to be taken into consideration so the sentiment that it is "vital that the President be able to focus on his never-ending tasks with as few distractions as possible" is likely to influence his judging too.

  • Sebastian Cremmington||

    Bill Clinton took OBL seriously and lamented on 9/10 that he failed to take him out. The Bush administration did not take OBL seriously until after 9/11 so it wouldn't have mattered if Bush was involved in civil litigation.

  • Sanctimonica||

    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.

    You can do that? I mean, present information in context? I didn't know that was possible after 1988 or so.

  • Actual Lawyer||

    The same guy who recommended to Kenneth Starr during the Clinton grand jury questioning:

    "After reflecting this evening, I am strongly opposed to giving the President any "break" … unless before his questioning on Monday, he either i) resigns or ii) confesses perjury and issues a public apology to you. I have tried hard to bend over backwards and to be fair to him.… In the end, I am convinced that there really are [no reasonable defenses]. The idea of going easy on him at the questioning is thus abhorrent to me…

    [T]he President has disgraced his Office, the legal system, and the American people by having sex with a 22-year-old intern and turning her life into a shambles — callous and disgusting behavior that has somehow gotten lost in the shuffle. He has committed perjury (at least) in the [Paula] Jones case. … He has tried to disgrace [Ken Starr] and this Office with a sustained propaganda campaign that would make Nixon blush."

  • Eugene Volokh||

    Well, sometimes "the same guy" changes his mind -- not inherently a bad thing to do in light of experience. Any thoughts on what he said about that in the article?

    "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."

  • Eddy||

    Clinton "brought that ordeal on himself" by signing two laws - the Independent Counsel Law and the crime bill with its Molinari Amendment. As for the latter, it allowed defendants (but not plaintiffs of complainants) to be examined on their past sexual behavior, even if unconnected to the pending case.

    Clinton simply assumed that these laws would apply to normies, not to himself.

    If he'd said, "wait, these laws are unfair and might be used against me," and then vetoed the laws, he would have spared both himself and the country some bad legislation.

  • swood1000||

    It's probably worth remembering that Kavanaugh changed his mind after serving for a number of years as Assistant to the President and White House Staff Secretary, where he was responsible for coordinating all documents to and from the president. This probably gave him a different perspective on the effect that lawsuits such as the one by Paula Jones would have on the operations of the president and on national affairs.

    A president in such circumstances is just going to limp along as best he can. The question is whether it is better for the country to put up with this kind of a distraction as opposed to waiting until he is out of office. Presumably, we are only talking here about matters that would not also be the focus of an impeachment inquiry. What's the urgency?

  • Sanctimonica||

    Looks like Kavanaugh was #MeToo before #MeToo was cool.

  • apedad||

    "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."

    What substantive analysis?

    I see a bunch of musings and what-ifs and gee-maybes, but nothing substantive.

    Heck, BB or I could have written the last five paragraphs.

  • Brett Bellmore||

    I'd have been more decisive about it: Presidents don't have squat in the way of immunity, end of story.

  • Absaroka||

    Some Roman officials had immunity while in office. That has the disadvantage that if prosecution awaits when you cede power, that's an incentive to find a way to not cede power. IIRC that was one of the reasons Caesar crossed the Rubicon, triggering a civil war.

    I suspect this is one of those things where norms work better than laws.

  • Eddy||

    We seem to go after symptoms, not causes.

    We take it as a given that we have prosecutors so powerful that they can disrupt anyone's life and job, whether the target is innocent or guilty.

    Yet we're focusing the discussion on whether the President has such an Important Job that he should be exempt (or at least partially exempt) from the sorts of disruptions that a regular prole has to face.

    Imagine that there were panels of citizens who felt empowered and unintimidated enough that they insisted on reviewing the evidence the prosecution has, and who were authorized to block a felony prosecution.

    Imagine that a prosecutor faced personal consequences for losing a case - especially if it becomes clear that the person (s)he targeted is innocent.

    The President has a pulpit from which he can preach these sorts of reforms - though his incentive to advocate for such reforms would be diluted if he was given special treatment - as if the problem with the country is not enough high officials getting special treatment.

    I hope Kavanaugh gets on the Supreme Court because he's better than the alternatives, and in any case makes his case to Congress, instead of discovering some Presidential immunity in the Constitution. But his idea is a bad one, a bad idea that we would expect a Swamp Creature to come up with.

  • Toranth||

    Grand juries and ham sandwiches. They're already a joke; allowing them into politics would be crazy.

  • Eddy||

    I would think they're already in politics when they rubber-stamp politically-motivated charges.

  • Brett Bellmore||

    Perhaps we should restore to grand juries the powers prosecutors have taken from them, then, so that they would represent a real check on the power to prosecute.

  • M.L.||

    Leftist tool Ezra Klein writes that Trump nominated Kavanaugh to "protect himself" from investigation.

    A little bit late for that, isn't it?

    The farce investigation is going on two years now, and what do these fools have to show for their hysterical fit of conspiracy theory delusion and seditious lying?

    Nothing, zip, nada.

  • Sarcastr0||

    Indictments, and an upcoming criminal trial. All with the devoted opposition of an entire political party.

    This is galloping along by white collar standards.

    Hey, how long did the many Benghazi investigations go on before you lot decided it wasn't a thing?

  • Toranth||

    It only took a few months to find Hillary Clinton's illegal email server, which is the primary cause of her loss to Trump.

    So, it looks like it took the Benghazi investigators only a few months before they found evidence of a political cover-up and significant criminal activity that ruined Clinton's career plans.

  • Sebastian Cremmington||

    Wrong, they had the emails but initially they didn't think there was anything wrong with them. The Benghazi investigation was trumped up because everyone knows ambassadors have free reign in country and the SoS doesn't micromanage them...that is why being an ambassador is a big deal.

  • Stephen Lathrop||

    Toranth, Clinton's email server wasn't even the primary cause of Republicans not voting for her—let alone moderates and Democrats.

  • bernard11||

    it looks like it took the Benghazi investigators only a few months before they found evidence of a political cover-up and significant criminal activity that ruined Clinton's career plans.

    None of that is true, of course, except on Fox News.

  • M.L.||

    Sarcastro -- Wow!

    Do you really think this is going to absolve the MSM and Democrats for their heinous behavior over the last 20 months in pushing this fantastical collusion conspiracy lie??

    "Oh, here are some crimes we found on our fishing expedition. Completely unrelated to the vaunted Trump/Russia collusion, but let's just forget about all that. This makes it all totally legit."

    Yes . . . Let's forget about spying on political opponents, collusion with and leaking of sensitive information to the media for express political purposes, partisan scheming and bias by intelligence officials, circular reporting and circular intelligence used to obtain warrants, and political collusion with Brits and Russians to damage Trump.

    Water under the bridge, right?

  • M.L.||

    Oh, I forgot to mention the numerous bald-faced lies to the public and to Congress.

  • James Pollock||

    But enough about Mr. Trump...

    As for collusion being "fantastical", we've already had Don Jr. admit that they were TRYING to collude, which is the sort of thing that makes the skeptic think it just might be possible.

    Personally, my belief is that they did not collude, because Putin figured he could get what he wants without Donnie T's help. But the Russkies definitely meddled, and they definitely wanted Donnie over Hill. But it would hurt his feelings to admit that the Russkies wanted him to win because they think he's far less capable than she would have been, so he won't do THAT, and that leaves us with him whining about witch hunt but doing every damn thing he can do to make himself look guilty.

    Putin is getting exactly what he wanted... a buffoon running the country, wrecking alliances that exist to check Russian power, weakening the US economically, and generally acting like a trash fire to keep attention off whatever it is Russia feels like doing. Somewhere, there's a Russian aircraft carrier with a big "Mission Accomplished" banner on it. While we Americans scurry around fighting amongst ourselves.

  • bernard11||

    This comment exactly proves that there is nothing Trump can do that will cause his supporters to desert him.

    "Farce investigation?"

  • Michael Ejercito||

    What is being investigated, but fairy tales made up by sore losers?

  • Sarcastr0||

    We don't know yet, hence the investigation.

    But already some shady folks have gone to jail or plead guilty and are awaiting sentencing.

  • Careless||

    We don't know yet, hence the investigation.

    That is the definition of a fishing expedition. Come on, you can't support that

  • Sarcastr0||

    I'd turn that on it's head - demanding evidence that there's 'something to investigate' before the investigation is putting the cart before the horse.

    What about all the intell agencies saying Russia worked to help Trump, plus all the people in the Trump campaign that kept meeting with Russia? It's not a case, but it sure as hell is probably cause.

  • Careless||

    He asked "What's being investigated" and you replied "We don't know, hence the investigation"

    Sorry, that's pure fishing expedition. And that's setting aside the fact that there's still no evidence of there being any there there.

  • Sarcastr0||

    I provided facts that make it in this case not a fishing expedition, though I can see how you took my initial comment as calling for one.
    I took his comment to mean the investigation of Trump was illegitimate because there was no crime evident. Which would make any investigation premature.

    Note, this is ignoring the counterintelligence aspect (which I know nothing about but looks like a fishing expedition).

  • James Pollock||

    " that's setting aside the fact that there's still no evidence of there being any there there."

    If you decide not to see any evidence, there's a risk you won't see the evidence.

    There's plenty of evidence.
    Proof? Not sure yet. Conclusive? No. But evidence? Not in short supply.

  • Stephen Lathrop||

    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.

    Haven't read the other comments yet. This seems so obvious I'll be surprised if I'm the first to mention it. But please. Kavanaugh just got through saying the President shouldn't be investigated while in office. On what basis does he visualize impeachment? This seems peculiar.

    If a President (not Trump) is engaged in treason, but it hasn't yet been proved, that's sort of an emergency, isn't it? The nation needs a process to find out promptly, and for sure, what the evidence is. The impeachment process isn't it. The impeachment process seems incapable of mustering evidence—and only barely capable of hearing it once it has been collected—and that, probably only sometimes.

  • Careless||

    What relevance does anything you've written here have? He didn't suggest SCOTUS should block such investigations.

  • Careless||

    At most, you've an argument that people shouldn't vote him into Congress

  • y81||

    Having worked for many giant corporations, I can say that the job of corporate CEO is also very complicated, difficult and time-consuming, and possibly more important than the President's job. (Didn't Henry Ford and Bill Gates change our lives more than Warren Harding and George H.W. Bush?) So why aren't they exempted from civil suits?

  • James Pollock||

    When you go to law school, and take "business associations", they'll explain to you that there's an advantage called a "liability shield" that comes with incorporation. Short version: With corporations, you can sue the corporation, but not the owners of the corporation, in civil courts.

    Now, they don't get sovereign immunity the way federal officials do, so you DO get shareholder suits, but that's a complication best left for business associations II.

  • larryseltzer||

    Do statutes of limitations run during this deferral?

  • PubliusVA||

    If I were writing the bill, I'd provide that any limitation periods are tolled during the period of immunity.

  • bernard11||

    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."

    But that's true of the investigation regardless, before it comes to a conclusion. Does Kavanaugh think there shouldn't even be an investigation?

    Besides, delaying the whole thing until the President is out of office inevitably makes it harder to prove things, to gather witnesses, etc., not to mention it gives the President ample time to cover things up in various ways.

    In any case, if the investigation interferes with the President's ability to perform his duties, let him temporarily step, as provided for in the 25th Amendment. Problem solved.

  • James Pollock||

    " it gives the President ample time to cover things up in various ways."

    The pardon power. The ability to say "even though you're guilty, the government wants to let you get away with it."

    If you're going to make the President stay in office during the crisis, I think we'll need an amendment that makes pardons require a subsequent President ratify them to make them permanent.

  • bernard11||

    "step aside, as provided for"

  • bernard11||

    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."

    OK. So while arguing that it is, in essence, impractical to subject the President to investigation and indictment, the impeachment process is a practical solution to the issue of Presidential crimes.

    Yeah. Sure. That makes sense.

  • Michael Ejercito||

    Well, who is supposed to investigate the President, except the House?

  • BigHands||

    Leaving aside the "Appointments Question", a Special Counsel/Prosecutor?

  • James Pollock||

    "Well, who is supposed to investigate the President, except the House?"

    Woodward. Bernstein. The failing NY Times.

  • BigHands||

    Many fine comments here and thanks to Eugene for providing some context into Kavanaugh's comments.

    TBS, the idea that a criminal investigation into a sitting POTUS would "cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas." seems very far fetched and his Clinton example buggers [sic] belief. Neither Clinton nor the federal government descended into a paralytic stupor over the investigations into Whitewater, Jones, Lewinsky, etc. and, in particular, I've seen no evidence that Clinton was so distracted as to have lost focus on OBL, anyone have something to back up that statement?

    [I leave comments about how Trump is handing the Mueller investigation to others.]

    And as @bernard11 and others have mentioned, we have a VP and 25A should things get really out of hand.

    Finally, while this discussion is important does anyone really believe that absent some bombshell Kav will not be confirmed? I really don't see any GOP senator voting against his nomination and some "red state" Dems will be going along for the ride.

  • Careless||

    That you'd even consider such a thing means that you have cemented the first American dictatorship.

  • BigHands||

    @Careless,

    Not being a US Senator, I don't get a vote. :-(
    :-)

  • Lee Moore||

    I wonder if there's a solution arising naturally from the Clinton (H) investigation, sorry "matter."

    The President should be fully exposed to all legal storms and pestilences that everyone else is exposed to. Except that it should be understood in advance that nothing will come of any investigation. If necessary the DoJ can write an opinion early in the piece, concluding that in practice it would be necessary to prove that the President had previously been married to a gerbil for the alleged conduct to fall within the necessary legal definition.

  • Andrew MM||

    This selection leaves out a very important part of Kavanaugh's article.

    Footnote 31: "Even in the absence of congressionally conferred immunity, a serious constitutional question exists regarding whether a President can be criminally indicted and tried while in office."

    For that proposition, he cites his 1998 Georgetown Law Journal article, in which he wrote:

    "The Constitution of the United States contemplated, at least by implication, what modern practice has shown to be the inevitable result. The Framers thus appeared to anticipate that a President who commits serious wrongdoing should be impeached by the House and removed from office by the Senate—and then prosecuted thereafter. The Constitution itself seems to dictate, in addition, that congressional investigation must take place in lieu of criminal investigation when the President is the subject of investigation, and that criminal prosecution can occur only after the President has left office. ...

    "The constitutional mechanism of impeachment recognizes, at least implicitly, that criminal prosecution of a sitting President is fraught with peril—virtually untenable as a matter of practice and unwise as a matter of policy. ... Thus, as the Constitution suggests, the decision about the President while he is in office should be made where all great national political judgments in our country should be made—in the Congress of the United States."

  • James Pollock||

    "The Constitution itself seems to dictate, in addition, that congressional investigation must take place in lieu of criminal investigation when the President is the subject of investigation, and that criminal prosecution can occur only after the President has left office. ..."

    That's a non-sequitur. The conclusion he reaches does not follow from the premise.
    The fact that criminal prosecution cannot occur until after successful impeachment and conviction in the Senate, does NOT imply that investigation must be done by the Congress only.
    It is true that the investigatory organs of the federal government might be caught in a conflict-of-interest, because they'd be investigating possible criminal wrongdoing by their boss. But there are 50 sovereigns whose law-enforcement agencies do not report to the government, and a couple of hundred sovereigns who have law-enforcement agencies that don't work for the U.S. at all. Plus, of course, you don't actually have to be a law-enforcement agency to investigate wrongdoing. Nixon and Trump share a dislike for (real) news media, and for the same reason... they don't have to listen when told to do (or not do) something.

  • bernard11||

    This selection leaves out a very important part of Kavanaugh's article.

    Unsurprising.

    Not to mention that it's not clear what the constitutional basis of the legislation Kavanaugh proposes is.

    I don't see anything that allows Congress to immunize the President from investigation or indictment. The argument about impeachment is nonsense. "Text of the Constitution" indeed.

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