Angling for a line of attack within hours of President Trump naming his nominee to the U.S. Supreme Court, many Democrats, including Senate Minority Leader Chuck Schumer, are charging Brett Kavanaugh was chosen because he offers the president a “get-out-of-jail-free card.”
In a TV interview in front of the Supreme Court building Monday night, as protesters chanted in the background, Sen. Cory Booker, D-N.J., asserted Trump – with a special counsel probing alleged campaign collusion with Russia – picked Kavanaugh from his famous list of 25 because the D.C. Circuit judge wrote a law review article arguing presidents shouldn’t be prosecuted while in office.
“I’m actually surprised that President Trump selected the one person who has writings that in many ways say to him, ‘Hey, you should not be investigated, presidents should not have to endure a criminal investigation or be the subject of such an investigation,” Booker told Washington, D.C.’s WJLA-TV.
“It is stunning to me that this president would be so overt about his desire to try to protect himself from criminal prosecution,” the Democratic senator said.
In a 2009 Minnesota Law Review article on separation of powers, Kavanaugh argued that the indictment of a sitting president could “cripple” the government, and he advised that Congress should pass a law protecting a president from prosecution or investigation while in office.
But Kavanaugh made it clear he does not believe the president should be immune from the political remedy contained in the Constitution, impeachment. And he said a president should be subject to prosecution after leaving 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,” he wrote.
Kavanaugh acknowledged 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,” he wrote.
— Common Conversation (@dianaaitchison) July 10, 2018
Writing at the beginning of the Obama administration, he concluded in the article 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,” Kavanaugh wrote.
Booker tweeted after Trump’s announcement Monday night: “The nomination of Judge Brett Kavanaugh to the Supreme Court is alarming & I’m strongly opposed to his confirmation.”
Tuesday morning, Senate Minority Leader Chuck Schumer, D-N.Y., was asked in an appearance on MSNBC’s “Morning Joe” by co-anchor Willie Geist whether he believed Trump selected Judge Kavanaugh because of the judge’s “views on presidential power and his position in that law review paper where he said that presidents should not be subject to prosecution while in office.”
“I certainly believe, he was the judge, probably of the 25 — they all would repeal Roe. They all would repeal ACA. But on this issue, the Mueller issue, which came up after the vetting by these two groups, he’s probably the most extreme, and it wouldn’t surprise me if that was very important to Donald Trum,” Schumer replied.
“Knowing Donald Trump, and I have no proof, do you think he didn’t inquire about this either directly or indirectly? Knowing Donald Trump, what do you think?”
In an editorial Tuesday commending Kavanaugh’s separation-of-powers argument against prosecuting a sitting president, the New York Sun noted the judge cited Justice Antonin Scalia’s lone dissent in the Supreme Court’s affirmation of the independent counsel act in the 1980s. Scalia warned that unleashing a special prosecutor with a vast team and unlimited budget to pursue a single target risked affecting the “boldness of the president.”