Remember Paula Jones and Bill Clinton? Judge Kavanaugh has changed his mind.
Judge Brett Kavanaugh, the Trump nominee for the Supreme Court seat vacated by Justice Anthony Kennedy, has changed his mind — drastically — about the criminal liability of sitting presidents. Twenty years ago Kavanaugh was ultra-active in Kenneth Starr’s prurient pursuit of Bill Clinton — and instrumental in framing an impeachment ”referral” based on Clinton’s fibs about his sex life. But now Kavanaugh has seen a great light. His conversion began, we are told, when he served under George W. Bush and witnessed first hand the burdens of being president.
No doubt the issue of presidential criminal liability will be explored in the Kavanaugh hearings, when and if they occur. We are still awaiting Robert Mueller’s report on the involvement of Trump’s 2016 presidential campaign (and Trump himself) in subversive errands for Vladimir Putin, who now admits that he favored Trump. Thus the Russian motives are sufficiently obvious to raise doubts about the Republicans’ determination to rush Kavanaugh to a seat on a court that may ultimately be called upon to settle the issue of Trump’s legal liability.
Trump has no respect for judges except as tools of his own overbearing ego. Kavanaugh, with the convert’s zeal, now carries the doctrine of presidential criminal immunity to novel extremes. It was a mistake, he now believes, to distract Clinton from his duties with a frivolous civil suit that originated before he became president and was ultimately dismissed. He thought otherwise when he was among the chief draftsmen of Starr’s “referral” to the House recommending Clinton’s impeachment.
This is a subtle and speculative issue and an old story in American constitutional law. In the Washington years, a military disaster on the western frontier prompted a congressional demand for confidential executive documents. Washington consulted Thomas Jefferson, who as secretary of state functioned as the administration’s house lawyer. Jefferson advised that although Congress was the nation’s “grand inquest,” the president could “exercise a discretion.”
Washington eventually sent the documents to Congress, but many decades later the Eisenhower Justice Department built the doctrine of “executive privilege” on Jefferson’s ambivalent advice — a suppositious invention that lacks explicit constitutional warrant. The purpose, in the mid-1950s, was to curb Sen. Joe McCarthy’s marauding (in which he was assisted by Trump’s buddy, Roy Cohn), but “executive privilege” has lately hardened into dogma.
The only recent precedent is Leon Jaworskl’s decision, as second Watergate special prosecutor, to name Richard Nixon an “unindicted co-conspirator” when his associates were criminally indicted. The Supreme Court of that day unanimously denied Nixon’s attempt to shield his incriminating White House tapes under “executive privilege.” The majority included Nixon appointees.
The Supreme Court once customarily avoided “political issues” involving power struggles between the political branches; but that restraint vanished in the go-go era of judicial pomp and posed no obstacle for justices who joked about Clinton’s golf game and OK’d Paula Jones’s distracting litigation. Kavanaugh is of the belated opinion that the country would have been better off if Bill Clinton had been allowed to worry less about Jones’ allegations (which were dismissed as insubstantial). He is nothing if not flexible.
It would be prudent for the Senate to delay Kavanaugh’s consideration until the approaching elections give some indication of the public attitude and temper — as the present Republican leadership argued when they refused the courtesy of a hearing to Obama’s highly qualified Supreme Court nominee. But Washington now operates on the cynical axiom that “where you stand depends on where you sit,” and that includes coveted seats on the U.S. Supreme Court.