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SCOTUS could soon rule on Trump’s claims of presidential immunity from criminal prosecution.
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A 2009 law review by Brett Kavanaugh sheds light on how the conservative justice might rule.
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Kavanaugh didn’t support blanket immunity and said prosecution could occur after a president’s term.
Many in the political world are waiting with bated breath as the Supreme Court considers arguments over whether Donald Trump is immune from criminal prosecution for his behavior while in office.
Depending on how the high court rules, some of Trump’s most serious legal troubles could melt away instantly. And though the conservative-majority court could hand Trump a massive legal win with their ruling if they offer a sweeping decision that affirms immunity for the former president’s actions, as his lawyers have argued, analysts and legal experts say it’s more likely he’ll be offered a minor victory and the Supreme Court may not issue a final ruling on immunity at all.
But one clue, hidden in a 2009 legal review written by Trump-appointed Justice Brett Kavanaugh, could indicate how the conservative judge may decide in this case. And as Kavanaugh is relatively moderate compared to the court’s other right-leaning justices, his 15-year-old analysis may offer insight into how the other Republican-appointed justices are looking at the matter before them.
A presidency free of distractions
In his article, published in the Minnesota Law Review in 2009, when he was working as a US Circuit Judge, Kavanaugh argues that the public grossly underestimates the difficulty of the President’s job and that anyone elected to hold the office should “be able to focus on his never-ending tasks with as few distractions as possible.”
That includes criminal prosecution — at least while in office.
“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,” Kavanaugh wrote, arguing in favor of deferring criminal and civil prosecutions against sitting presidents accused of wrongdoing to ensure they can efficiently carry out the responsibilities of office.
One might contend that the country needs a check against a bad-behaving or law-breaking president, Kavanaugh acknowledges, 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,” Kavanaugh wrote. “Moreover, an impeached and removed President is still subject to criminal prosecution afterwards.”
The President’s job is difficult enough as is, Kavanaugh argued, so he shouldn’t be burdened by prosecution attempts while in office, especially since there are avenues to remove him from office if necessary.
In his writing, Kavanaugh noted he didn’t always feel this way, so it’s possible he may have changed his mind on this topic in the intervening years. Still, a question remains about his intent when using the phrase “impeached and removed” and if that could impact how he rules on Trump’s claims of sweeping immunity.
Trump’s lawyers have argued he could only be held criminally liable for actions taken while in office if he was impeached and removed by Congress for the behavior in question.
Jonathan Entin, a retired constitutional law professor at Case Western Reserve University who clerked for former Supreme Court Justice Ruth Bader Ginsburg while she was in the DC Circuit, told Business Insider that, based on his writing, Kavanaugh might not agree.
“I don’t read that as saying that Kavanaugh would agree with the Trump argument about you have to be impeached and removed before you can be prosecuted,” Entin said. “I read that part of the article as saying that the President is not subject to indictment and prosecution while in office. That is a position that the Department of Justice has maintained under both Democratic and Republican administrations alike.”
The real factors SCOTUS is weighing
Entin said that instead of deciding whether impeachment and removal are required to quash claims of immunity, Kavanaugh and the other conservative justices might more likely be considering whether to draw a hard-line rule about when immunity applies or establish a general standard by which these types of claims can be measured.
“The people who, in the oral arguments, were talking about potential future prosecutions might be trying to draw a bright line which says, ‘okay, these sorts of activities might be subject to prosecution, but other things the President will have immunity,'” Entin said, noting that the conservative justices tended to be more focused on future applications of the decision rather than crafting a ruling based on the specific set of facts at hand.
Regardless of what drives their decision — and he doesn’t rule out partisan ideology as a factor — Entin said it’s unlikely the Supreme Court will resolve the question of presidential immunity in this case completely. He expects the Justices to kick the decision back down to the lower courts in what would be a victory, but not a landslide, for Trump.
“My sense is that we are probably going to get something that looks like a 6-3 decision, where the three Democratic appointees will dissent, and the six Republican appointees will say that this case has to go back to the lower courts to sort out what part of the indictment involves official actions — for which the President is immune from prosecution at any time — from things that are not, and that will kick the can down the road,” Entin said.
Representatives for the Supreme Court did not immediately respond to a request for comment from Business Insider.
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