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Kavanaugh Frets Over Presidents, Often Votes Against Convicts

July 10, 2018, 6:58 PM

Supreme Court nominee Brett Kavanaugh told the audience gathered at the White House July 9—and everyone else watching on TV—that he was introduced to the law by his mother, a prosecutor, who would practice her closing arguments at the dinner table.

A review of his opinions as a judge for over a decade on the U.S. Court of Appeals for the District of Columbia Circuit suggests that he ate it up, frequently voting for the prosecution, including dissenting alone from majority decisions that went the other way.

“In general, he seems like he will be a reliable vote for the government in criminal cases, along the lines of Justice (Samuel) Alito,” Harry Sandick, a former federal prosecutor and current litigation partner at Patterson Belknap Webb & Tyler LLP, told Bloomberg Law.

But the exceptions to that general rule, exemplified in some of Kavanaugh’s separate writings during his time on the D.C. Circuit, show that President Donald Trump’s second high court pick has an independent streak that has led him to vote for some defendants.

And given the special counsel investigation of the Trump campaign and Russian election interference, one of the biggest criminal law talking points at upcoming confirmation hearings might be the unique sympathy he’s professed for one type of potential defendant: a sitting president. He wrote a 2009 law review article arguing that they shouldn’t be bothered by criminal prosecutions.

Don’t Distract the Chief

Kavanaugh previously worked for Ken Starr, the independent counsel who investigated then-President Bill Clinton. He served in the administration of George W. Bush, who nominated him to the D.C. Circuit. Those experiences led him to dwell on what criminal exposure can mean for a sitting president.

He concluded that Congress should consider legislation deferring criminal action during a president’s tenure.

“Having seen first-hand how complex and difficult that job is, I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible,” Kavanaugh wrote in the article, published in the Minnesota Law Review.

“Looking back to the late 1990s, for example, the nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal investigation offshoots,” he wrote.

Kavanaugh expressed concern in the article that indicting and trying a sitting president “would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas.”

“A President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President,” he wrote.

Going It Alone Both Ways

During his tenure on the D.C. Circuit, Kavanaugh wrote a wide array of opinions rejecting appeals from criminal defendants.

He also dissented alone several times from decisions that went against the government. These included majority rulings that vacated sentences, removed sex offender restrictions, and upheld a civil judgment against officers secured by “an alleged victim of overzealous law enforcement.”

Kavanaugh also wrote a dissent, joined by some of his colleagues, from the full D.C. Circuit’s refusal to rehear a qualified immunity case involving the arrest of partygoers at a vacant house.

He criticized the circuit’s prior ruling that went against the government in Wesby v. D.C., a case that might sound familiar because the Supreme Court went on to decide it this past term. The high court agreed with Kavanaugh in a unanimous opinion, reversing his D.C. Circuit colleagues.

In another case that would make its way to the justices, Kavanaugh dissented from the circuit’s decision in 2010 not to rehear United States v. Jones, the vehicle GPS tracking case where the Supreme Court two years later held such tracking requires a warrant.

In another search and seizure case that showed his law and order stripes, Kavanaugh dissented from a majority decision to argue that it wasn’t unlawful for police to unzip a robbery suspect’s jacket, revealing a firearm.

But among his separate writings showing he goes his own way sometimes on questions of crime and punishment is a concurring opinion he wrote explaining why he agreed to reverse a murder conviction.

Kavanaugh reasoned that doing so was “not a hard call” because the jury convicted the defendant based on a wrong understanding of the law. He was “unwilling to sweep that under the rug” despite the fact that the defendant “committed a heinous crime.”

He likewise wrote a concurrence detailing his viewof the danger of “abuse and injustice” in prosecutions for making false statements. That’s the crime to which Trump’s former national security adviser Michael Flynn pleaded guilty in connection with the ongoing special counsel probe.

Kavanaugh also wrote separately about his concern with judges’ use of conduct defendants are acquitted of to enhance their sentences. “Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial,” he wrote.

And he “emphatically” dissented in a gun case, criticizing the majority’s “seriously mistaken” decision, which wrongly, in his view, imposed an extra 20 years of mandatory imprisonment.

Detainees, Metadata

Kavanaugh also sided with the government in national security cases.

He wrote separately to convey his expansive view of federal power and ruled for the government’s view of detainees’ habeas corpus claims.

The nominee likewise ruled for the government in a case involving its controversial bulk collection of telephone data.

That practice is “entirely consistent with the Fourth Amendment,” Kavanaugh wrote for the court in Klayman v. Obama. It “serves a critically important special need—preventing terrorist attacks on the United States.”

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bloomberglaw.com

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