Wealthy, Beltway-bred Brett Kavanaugh overcame many crushing disadvantages to be nominated to the Supreme Court by Donald Trump. He has a long affiliation with the Bush family, whose dying patriarch Trump slurred just last week. And he comes with an expansive paper trail of 300 prior court decisions, endless presidential office e-mail chains, and numerous legal-journal articles—all of which will make for a long hot summer of reading for Democratic aides and progressive legal watchdogs. On everything from voting rights to abortion to his work for Clinton-hounding independent counsel Kenneth Starr in the 1990s, Kavanaugh will provide Democratic senators (as well as Republicans, if any deign to do their jobs) with plenty to question him about when hearings begin, possibly as early as next month.
Senate majority leader Mitch McConnell, an expert at greasing the skids for right-wing Court nominees, urged Trump to pick either Thomas Hardiman or Raymond Kethledge, two stalwart conservatives also on US appeals courts who come with shorter paper trails and no troublesome Washington political past. Trump promised to drain the swamp; Kavanaugh is Swamp Thing, a product of the conservative DC establishment and an accomplice to some of its worst mistakes. Meanwhile, top presidential adviser (secondarily, a Fox host) Sean Hannity was pushing Amy Coney Barrett, a devout conservative Catholic and abortion opponent who would have fired up Trump’s white-evangelical base.
But Kavanaugh possessed one big advantage over the rest of the field: his passionate support for almost unbridled executive power, along with an eccentric conviction that a sitting president shouldn’t be indicted and or maybe even criminally investigated, for anything. The president should be excused from “time-consuming and distracting” lawsuits and investigations, Kavanaugh wrote in a 2009 Minnesota Law Review article, as that “would ill serve the public interest, especially in times of financial or national security crisis.” Impeachment is the only remedy for a law-breaking chief executive, Kavanaugh said, urging Congress to “consider a law exempting a President—while in office—from criminal prosecution and investigation.”
For a 1998 symposium on the role of independent counsels, Kavanaugh wrote that the decision to appoint one “should be at the president’s discretion,” that “Congress should give back to the President the full power to act when he believes that a particular independent counsel is “out to get him” and that such a counsel should not produce a public report. (The independent-counsel statute expired in 1999; Mueller’s special-counsel role is comparable but less powerful.) At a February 1998 panel on “The Future of the Independent Counsel Statute,” Kavanaugh argued that “the prosecutor should be removable at will by the President.” Asked if anyone believed a president couldn’t be indicted while in office—a very unsettled legal question—Kavanaugh raised his hand (about one minute into this video.)
These are chilling words and gestures from a potential Supreme Court nominee, considering the vulnerability of special counsel Robert Mueller, now subject to near-daily Trump tantrums and the ongoing threat of termination. Kavanaugh’s appointment, if confirmed, would be “a ‘Get Out of Jail Free’ card” for Trump, says Oregon Democrat Jeff Merkley.