People For the American Way

Brett Kavanaugh Still Deflecting on Presidential Power in Supreme Court Hearing

News and Analysis

Supreme Court nominee Brett Kavanaugh continues to avoid ‘fessing up to his belief that a sitting president cannot be criminally indicted.

On the afternoon of day three of the Supreme Court confirmation hearing, Sen. Whitehouse showed a telling video from a 1998 Georgetown Law School symposium that Kavanaugh was participating in. At one point, the moderator asks:

How many of you believe as a matter of law that a sitting president cannot be indicted during the term of office.

Kavanaugh’s hand flew up.  This was probably not a surprise to those in attendance, since Kavanaugh had just written a law journal article strongly suggesting that exact belief. He wrote that since the Constitution does not say so explicitly, Congress should pass a law making it clear that the president cannot be indicted:

Congress can answer a question that the Constitution does not explicitly address, but that can greatly influence independent counsel investigations: Is the President of the United States subject to criminal indictment while he serves in office? Congress should establish that the President can be indicted only after he leaves office voluntarily or is impeached by the House of Representatives and convicted and removed by the Senate. Removal of the President is a process inextricably intertwined with its seismic political effects. Any investigation that might conceivably result in the removal of the President cannot be separated from the dramatic and drastic consequences that would ensue. This threat inevitably causes the President to treat the special counsel as a dangerous adversary instead of as a federal prosecutor seeking to root out criminality.

Whether the Constitution allows indictment of a sitting President is debatable (thus, Congress would not have the authority to establish definitively that a sitting President is subject to indictment). Removing that uncertainty by providing that the President is not subject to indictment would expedite investigations in which the President is involved (Watergate, Iran-Contra, and Whitewater) and would ensure that the ultimate judgment on the President’s conduct (inevitably wrapped up in its political effects) is made where all great national political judgments ultimately must be made–in the Congress of the United States.

At the hearing, Sen. Thom Tillis sought to come to Kavanaugh’s rescue by focusing on the word “debatable” in the second paragraph above. But that’s just another way of saying that Constitution does not explicitly shield the president from criminal indictment. It doesn’t matter if Kavanaugh thinks it’s debatable; what matters is his position in that debate.

Kavanaugh subscribes to the unitary executive theory: He believes no part of the executive branch can operate independently of the president. In his article and at the symposium, he expressed the view that:

  • A special prosecutor should be selected by the president himself, subject to Senate confirmation. Congress cannot empower a panel of judges to make the selection.
  • The president should have the power to fire the special prosecutor without cause.
  • If the president is the “sole subject” of a criminal investigation, it should be shut down.

When Kavanaugh said this, the Supreme Court had already upheld having an independent counsel selected by a panel of judges. This was in an 8-1 decision called Morrison v. Olson  Just in case there was any doubt, Kavanaugh said in 2016 that he wanted to “put the final nail in” the case.

So as much as Kavanaugh tries to avoid saying so at his hearing, he believes that a sitting president cannot be indicted. That’s why Trump picked him in the first place!


Brett Kavanaugh, Protecting the Supreme Court