Senate Democrats signaled yesterday that Brett Kavanaugh should prepare for the kitchen-sink treatment with a ridiculous demand for a recusal. Earlier, some Democrats had seized on an article written by Kavanaugh arguing that Congress should pass a law to grant limited immunity from prosecutors to sitting presidents, thanks to lessons learned from Kavanaugh’s time on Ken Starr’s Whitewater investigation. Now, at least two members of the Senate Judiciary Committee say they will demand that Kavanaugh pledge to recuse himself from all matters connection to Robert Mueller’s investigation:
Democrats on the Senate Judiciary Committee said Tuesday they intend to ask Brett Kavanaugh to step aside from any future cases involving Robert Mueller’s investigation of President Donald Trump if he’s confirmed to the Supreme Court.
The recusal requests stem in large part from a 2009 law review article that Kavanaugh wrote suggesting that Congress take up legislation “exempting a president — while in office — from criminal prosecution and investigation.” Given that the Supreme Court ultimately could rule on several high-profile issues related to the special counsel’s investigation of Trump’s ties to Russia, Democrats will press Kavanaugh to commit to stepping aside.
“I don’t think he should be on the court, and you can be sure that me and my colleagues on the Democratic side are going to be asking if he will recuse himself, should he be confirmed,” Sen. Cory Booker (D-N.J.), considered a potential Trump challenger in 2020, told reporters.
Sen. Richard Blumenthal (D-Conn.), another member of the Judiciary panel, agreed that Kavanaugh should recuse himself from any cases “that involve President Trump’s personal financial dealings or the special counsel.”
Chuck Schumer went even further, accusing Kavanaugh of being the candidate Trump though “would best protect him from the Mueller investigation.” There are only two problems with this argument: Kavanaugh didn’t argue that the courts had any role in the question, and there is no conflict of interest.
Let’s start with the law-review article from 2009, written long after the Starr investigation wrapped up and the impeachment of Bill Clinton took place. Kavanaugh noted that the impeachment actually got prompted by a civil lawsuit rather than a criminal investigation, and called into question whether presidents should be subject to the potential for legal harassment. In the absence of statute to the contrary, the courts correctly allowed Paula Jones’ lawsuit to proceed, Kavanaugh argued. But, Kavanaugh continued, that should have prompted Congress to act:
With that in mind, it would be appropriate for Congress to enact a statute providing that any personal civil suits against presidents, like certain members of the military, be deferred while the President is in office. The result the Supreme Court reached in Clinton v. Jones — that presidents are not constitutionally entitled to deferral of civil suits — may well have been entirely correct; that is beyond the scope of this inquiry. But the Court in Jones stated that Congress is free to provide a temporary deferral of civil suits while the President is in office. Congress may be wise to do so, just as it has done for certain members of the military. Deferral would allow the President to focus on the vital duties he was elected to perform.
Congress should consider doing the same, moreover, with respect to criminal investigations and prosecutions of the President. In particular, Congress might consider a law exempting a President — while in office — from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel. Criminal investigations targeted at or revolving around a President are inevitably politicized by both their supporters and critics. As I have written before, ‘no Attorney General or special counsel will have the necessary credibility to avoid the inevitable charges that he is politically motivated — whether in favor of the President or against him, depending on the individual leading the investigation and its results.’ The indictment and trial of a sitting President, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.
Democrats want to argue that this indicates that a Supreme Court Justice Brett Kavanaugh would shut down a special counsel prosecution, but that’s not what Kavanaugh wrote. He instead argued that Congress should provide that immunity, and that absent such action, the courts would have to allow those lawsuits and prosecutions to proceed. It’s a deliberate misreading for which the Washington Post fact-checking team awards two Pinocchios, bordering on three:
Noah Feldman, a Harvard Law School professor, wrote that Kavanaugh might be saying “the president can be investigated and maybe even indicted unless Congress passes a law saying he can’t.” (Emphasis ours.)
Feldman wrote that “from a legal and constitutional perspective, Kavanaugh wasn’t saying that the courts should find that the president shouldn’t be investigated or indicted.” “To the contrary,” he wrote. “He was saying that Congress should pass a law ensuring that result, because without it, the president was open to being investigated — and maybe even indicted.” …
Kavanaugh’s articles from 1998 and 2009 are no smoking-gun evidence that he would vote to dismiss an indictment against Trump, should one ever be filed. Although he clearly believes it’s a bad idea to indict a sitting president, Kavanaugh never states his view whether the Constitution allows it. In fact, he says Congress should pass legislation to ensure the president is immune from civil and criminal proceedings while in office. As Feldman writes, Kavanaugh’s 2009 article can be read as a signal that he might uphold a presidential indictment unless Congress changes the law.
We don’t mean to split hairs by analyzing whether Kavanaugh believes something “can’t” or “shouldn’t” happen, but in the legal arena, this distinction matters. Kavanaugh’s stated views on this question don’t go as far as Fallon, Maloney and Ocasio-Cortez claimed. Their tweets merit Two Pinocchios, although we considered giving Three. To say Kavanaugh is Trump’s “get-out-of-jail free card” is an extreme distortion of what he’s written.
With that in mind, let’s turn to the bad case of Recusal Fever that afflicts Senate Democrats. Judicial recusals are rare, especially at the Supreme Court, and always involve a specific and clear conflict of interest. Elena Kagan had to recuse herself from several cases in her first couple of years because of her work on them as a member of the Obama administration. Cases in which a justice has a financial interest could trigger a recusal. In all cases involving Supreme Court justices, it’s up to the individual justice as to whether a conflict of interest rises to the level of recusal as balanced against the interest of the American public in having all nine justices working on the important issues that reach that court.
None of that applies to Kavanaugh in this instance. He has done no work on the Mueller investigation, nor did he do any work for Donald Trump either before, during, or after the campaign. Democrats are ginning up a connection to Mueller in an attempt to smear Kavanaugh, in part by deliberately distorting Kavanaugh’s advice to Congress on the potential for limited presidential immunity, six years before Trump ever decided to run for office.
The only recusals needed here are those by Booker, Blumenthal, Schumer, and anyone else who peddles this noxious nonsense.