Justice Kavanaugh's 2009 law review article may offer clues on ruling about Trump's immunity claim

 May 1, 2024

Much of the nation is anxiously awaiting a decision from the Supreme Court following last week's oral arguments on former President Donald Trump's claim of absolute and ever-lasting presidential immunity from prosecution, which has already indefinitely delayed one of his federal criminal cases and threatens to undermine other prosecutorial efforts against him.

That decision likely won't come until June or July, but some legal analysts and media pundits think they have figured out how Justice Brett Kavanaugh might rule on the matter based on a law review article he wrote 15 years ago, Business Insider reported.

The article, written when Kavanaugh was a U.S. Circuit Judge, dealt with several proposals to fix what was "broken" in Washington D.C., including a call for Congress to formalize via legislation the immunity from civil and criminal investigations and prosecution while serving in office.

Kavanaugh's thoughts on immunity for "sitting" presidents

In his 2009 article for the Minnesota Law Review, then-Judge Kavanaugh relayed from his own experiences in the White House how difficult and pressure-filled the job of the presidency is and how much more burdensome it would be with the added "distractions" of ongoing investigative and prosecutorial efforts against them.

As such, he suggested that Congress pass legislation to specifically empower presidents to defer all civil and criminal investigations and prosecutions until after their term had concluded and they left office. He then preemptively responded to likely critiques that he expected to receive to his idea.

On the matter of whether such immunity would place a president "above the law," Kavanaugh wrote, "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 also addressed the need for a "check" against a "bad-behaving or law-breaking President," but pointed out that such a check already existed in the form of impeachment. "If the President does something dastardly, the impeachment process is available," he wrote. "No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress."

"Moreover, an impeached and removed President is still subject to criminal prosecution afterwards. In short, 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," Kavanaugh added. "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."

Court likely to rule former presidents are protected by partial immunity

To be sure, Justice Kavanaugh's 2009 article discussed presidential immunity in the context of a "sitting" president, not a former one, and specifically noted that a former president -- though perhaps only one who was "impeached and removed" -- would be "subject to criminal prosecution" after leaving office.

While that would seemingly not bode well for former President Trump, it must also be pointed out that a lot has changed over the past 15 years -- including potentially Kavanaugh's views on presidential immunity -- while simultaneously pairing what Kavanaugh wrote at that time with what he said during last week's oral arguments.

According to SCOTUSblog, Kavanaugh seemed inclined to rule that former presidents enjoy at least partial immunity after leaving office, which in this particular case would necessitate sending the issue back down to the district court for additional hearings to determine which of Trump's alleged criminal acts constituted "official" acts, for which he would be immune, or private acts for which he could be charged and prosecuted.

Politico reported that such a ruling would be a "win" for Trump, even as his claim of "absolute" immunity would be rejected, as such hearings and motions and appealable decisions would almost certainly further delay the underlying election interference trial until after November's presidential election.

Kavanaugh "very concerned" about probable "cycle" of partisan investigations of ex-presidents

Politico further reported that Justice Kavanaugh expressed how he was "very concerned about the future" of the nation if former presidents lacked any sort of immunity from prosecution after leaving office, given the likelihood that the prosecution of former President Trump would set the stage for partisan escalation and tit-for-tat investigations and prosecutions for each president going forward.

Pointing to his prior experience with the partisan investigations that occurred under the now-defunct independent counsel law, Kavanaugh warned, "It’s going to cycle back and be used against the current president or the next president and the next president and the next president after that" -- unless, that is, they had some measure of protection via immunity for acts that occurred during their presidency.

" A free people [claim] their rights, as derived from the laws of nature."
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