Lawfare‘s Benjamin Wittes tries to correct the misapprehensions of many, including myself, and possibly even President Trump, concerning Judge Kavanaugh’s attitudes towards the Office of the President and the law by delving into the musty old articles of 1998. Here’s one of the three points he claims Kavanaugh is making in an article Kavanaugh published shortly after the impeachment of President Clinton:
Second, the article also makes a strong prudential case for independent investigations of the President and other high officials, given the inherent conflicts facing the attorney general in situations in which senior administration officials are investigative subjects. Kavanaugh made this argument at a time when, as noted above, the whole political culture was moving the other way. “Even the most severe critics of the current independent counsel statute concede that a prosecutor appointed from outside the Justice Department is necessary in some cases,” Kavanaugh writes. “Outside federal prosecutors are here to stay.” Critically, Kavanaugh’s proposed structural reforms to the independent counsel law were aimed not at weakening it but at shoring up the credibility and independence of the investigators against political attacks. Does this sound like someone who’s gunning for Mueller?
Wittes transitions, then, to this:
Kavanaugh and I talked at some length about these ideas at the time he gave that speech and wrote that article. I had written a book about the Starr investigation, a number of years earlier, in which Kavanaugh is quoted. So we had a shared interest in the subject of how investigations of the president should and should not take place. His point was in no sense to create an imperial presidency that was above the law. His concern, rather, was that his experience with Bush had taught him that Starr’s disabling of the Clinton administration was not worth it. This was about humility. “Looking back to the late 1990s,” he writes, “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 gave the speech when it looked like Barack Obama would win the presidency. He published the article with Obama in office. This was a policy proposal, in other words, to protect the institution of the presidency at time when his party didn’t control it. And nowhere in those pages does he indicate that his view of the law had changed.
I am not convinced that Kavanaugh would not get in the way of any SCOTUS case involving the President on the grounds that the President is too busy or too important to be imposed upon. Wittes and Kavanaugh notes the country might have been better off if Clinton hadn’t been bothered by those suits of long ago. The problem with this statement is that impeaching President Clinton over a blowjob wasn’t an act of responsible governance, it was the act of a political party that was entering into its first phase of insanity.
Also, arguments on posteriori grounds based on one or a few cases, without a theoretical framework with which to justify those arguments, are really little more than ad hoc emotional arguments. In my previous post on this subject, I laid out the theoretical, plausible outcomes of adhering to just such reasoning, which comes down to leaving the Nation vulnerable to a malignant or incompetent President, and that Justice delayed is quite frequently Justice denied.
Suggesting the President shouldn’t be subject to such cases just because Clinton may have been unfairly victimized isn’t good reasoning. If the result is to protect a truly malignant President from investigation and removal, it’s better to put the blame for that sordid incident on the responsible entity – the Republican Party for pursuing a triviality which could have been better handled through some misdemeanor in court, or even a traditional whisper campaign – rather than subjecting the nation to a truly sanctimonious, yet completely hypocritical trial.
The impeachment of Clinton may have been one of the early signs that our political system was beginning to suffer from a cancerous growth called hypocrisy.
And I don’t think Wittes’ judgment on this matter is accurate, so much as I should like to.
