By: Lisa M. Hayes – Confluence Daily is your daily news source for women in the know.
By his own words, while he thinks a President should be immune from prosecution, Brett Kavanaugh admits there is no law that makes it so.
Legal scholars have been asking the question long before Donald Trump became president. Nixon certainly pushed us up into a debate regarding one of the most tenuous questions our democracy can ever face. Is a sitting President of the United States quite literally above the law while he/she holds office?
Can a sitting President be tried for crimes he/she committed before taking office or while in office?
Can a sitting President be sued in a civil court while he/she holds office?
Can a sitting President be required to testify in proceedings against others that might result in testimony that incriminates him/her for future prosecution?
Legal scholars, professors, and judges have been playing with this topic a lot recently for obvious reasons. However, it was in 2009 that Brett Kavanaugh put did something he couldn’t have anticipated at the time. He wrote a paper for the Minnesota Law Review stating that Congress should pass a law “exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.”
That article written in 2009 put him on the short list for a Supreme Court Nomination he ultimately got in 2018. While conservative media will make the case that Kavanaugh was nominated for a seat on the highest court in the land because of his shining credentials, make no mistake, Trump appointed him for one reason. Kavanaugh has gone on the record as saying he doesn’t think a sitting President should be prosecuted.
Kavanaugh is a conservative Catholic. However, he has stayed off the record, at least publicly on the hot-button issues like abortion and gay rights. While he was Justice Kennedy’s personal favorite to replace him on the court, Kavanaugh wasn’t a glaringly obvious choice for the slot. Since he was named on the shortlist Kavanaugh has been known for one thing and one thing only. He’s the guy who would oppose prosecuting a sitting President.
What Brett Kavanaugh couldn’t have known in 2009 were the circumstances that would face our nation now. He couldn’t have imagined his nomination would be announced in the shadow of the trial of the President’s own campaign manager. No one could have predicted the Special Council investigation. Kavanaugh couldn’t have understood the likelihood of a sitting President being indicted and tried for the kinds of crimes Donald Trump may very well be during his term in office. Life was a lot simpler in 2009.
However, it’s hard to imagine as Trump interviewed candidates that topic didn’t come up. With a President likely facing criminal charges more than any President before him, who likes to operate his administration by loyalty oaths, Kavanaugh’s nomination is so transparent it’s painful.
For a President who has said his Supreme Court Nominations would have to pass the litmus test of protecting the right to life, Trump nominated a judge who hasn’t taken a public stand on that issue. He nominated a judge who will likely protect him personally should a criminal case against him find it’s way into the courts – and everyone knows it.
In his speech after the announcement of his nomination, Kavanaugh did say he feels the role of a judge is to adjudicate based on current law, not to make law. Based on the fact that his 2009 paper called on Congress to pass a law protecting a sitting President from prosecution, he acknowledged no such law exists. Maybe by that measure, Kavanaugh may not be the safe bet Trump believes he will be.
However, in a political climate where the Congressional Dems and about half the country are willing to lay down the gauntlet to prevent this nomination, that 2009 paper will either be the keys to the kingdom or the sword this man’s career will die on.
No one should be above the law – and there is no law that suggests otherwise. On that point, Kavanaugh got it right almost a decade ago. We can pray he remembers that should he take a seat on the Supreme Court.
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Lisa M. Hayes, Senior Editor of Confluence Daily.
Confluence Daily is the one place where everything comes together. The one-stop for daily news for women.