Defenders of Supreme Court nominee Brett Kavanaugh are accusing his critics of distorting his views on whether a sitting president can be indicted, but they may be overlooking another key clue about his take on what’s likely to be a contentious issue at Kavanaugh’s Senate confirmation hearing.
Kavanaugh’s allies note that the 2009 Minnesota Law Review article he wrote addressing such subjects advocates for a congressional statute that would exempt the president from civil suits while in office, as well as immunizing him from criminal investigation and prosecution. He does use some pretty strong language about the prospect of a criminal trial of a sitting president, saying it would “cripple the federal government”—an assessment that one could imagine leading a Supreme Court justice to step in to avert such a prospect.
However, Kavanaugh’s supporters observe that by backing a law to provide such immunity, he was implicitly accepting that it could not be found in the Constitution or existing law. Perhaps so, but it turns out Kavanaugh was asked directly about his view on the subject two decades ago and signaled his belief that a presidential indictment was beyond the pale.