Brett Kavanaugh’s expansive views on presidential power have raised some eyebrows since his nomination, given the freewheeling president who selected him.
But those broad views on the executive will likely come under a microscope to an even greater extent after President Donald Trump’s former lawyer, Michael Cohen, implicated the president in campaign finance crimes in Manhattan federal court Aug. 21.
Cohen detailed in his guilty plea his hush money payments at the request of then-candidate Trump to conceal potential damaging information—including Trump’s alleged affair with the now-infamous Stormy Daniels—in the run-up to the 2016 election.
The remarkable development took place nearly simultaneously as Trump’s former campaign manager, Paul Manafort, was convicted of several fraud felonies at trial in Virginia.
Meanwhile, Democratic senators Aug. 22 are calling for a postponement of Kavanaugh’s confirmation hearing in light of the felony convictions in Trump’s inner circle and the nominee’s refusal to say whether the president should have to comply with a subpoena.
Senate Judiciary Chairman Chuck Grassley (R-Iowa) said the hearing will go on as scheduled Sept. 4.
But as the president’s legal and political exposure mounts, Kavanaugh’s argument in a 2009 law review article that sitting presidents shouldn’t face criminal prosecution will likely get more scrutiny.
“The indictment and trial of a sitting President” would “cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas,” he wrote. “Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.”
There are other questions that could come before the Supreme Court involving Trump’s potential legal troubles, including the subpoena question, an issue that has echoes of the Watergate scandal that brought down President Richard Nixon.
Distracted President Problem
Kavanaugh wrote in the Minnesota Law Review article that his time working for Ken Starr investigating President Bill Clinton and his time in the George W. Bush administration led him to conclude that Congress should pass a law saying presidents can’t be indicted while in office.
“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,” the Trump nominee wrote.
“A President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.”