Brett Kavanaugh and the Mueller Investigation: What Do His Writings Really Say?

I think I am on safe ground in saying that when Brett Kavanaugh and I presented our papers at the Minnesota Law Review symposium in October 2008—his on separation of powers and mine on (of all things) judicial nominations—neither of us imagined that 10 years later, four pages of his text would be cited as proof that he is unfit for confirmation to the Supreme Court. Yet in the context of the Mueller investigation and the Trump presidency, a segment of Kavanaugh’s speech—the whole of which he later published as an article—has become an exhibit in the early case for the grave danger that he poses to our republic.

The Washington Post reports that:

U.S. Circuit Judge Brett M. Kavanaugh, a former clerk for Supreme Court Justice Anthony M. Kennedy who was nominated replace him, has argued that presidents should not be distracted by civil lawsuits, criminal investigations or even questions from a prosecutor or defense attorney while in office.

Kavanaugh had direct personal experience that informed his 2009 article for the Minnesota Law Review: He helped investigate President Bill Clinton as part of independent counsel Kenneth W. Starr’s team and then served for five years as a close aide to President George W. Bush.

Having observed the weighty issues that can consume a president, Kavanaugh wrote, the nation’s chief executive should be exempt from “time-consuming and distracting” lawsuits and investigations, which “would ill serve the public interest, especially in times of financial or national security crisis.”

If a president were truly malevolent, Kavanaugh wrote, he could always be impeached.

Kavanaugh’s position that presidents should be free of such legal inquiries until after they leave office puts him on the record regarding a topic of intense interest to Trump — and could be a central focus of his confirmation hearing to succeed Kennedy, legal experts said.

The Nation goes further, declaring in an article entitled “Brett Kavanaugh Once Argued That a Sitting President Is Above the Law”:

believers in the rule of law should be concerned that something [other than conservatism] about this nominee appealed to Donald Trump. Kavanaugh has been an open advocate for precisely the sort of imperial presidency that the founders of the American experiment feared—and that Donald Trump relishes.

Other news and commentary outlets have piled on—and so have Democrats. Senate Minority Leader Chuck Schumer on Tuesday went so far as to say that of the candidates considered for the nomination, President Trump, “chose the candidate who he thought would best protect him from the Mueller investigation.” Added Schumer, “Mr. Kavanaugh was probably the most extreme on that issue of the 25” judges the president reportedly considered. “Not only did Mr. Kavanaugh say the president should not be subpoenaed, he said a president shouldn’t be investigated.” At the same press conference, Sen. Cory Booker also commented on the matter.

And Sen. Richard Durbin added a tweet.

If Kavanaugh’s writings on special counsel investigations really influenced Trump’s decision to nominate him, then Trump is a bigger fool than I have imagined. Kavanaugh’s writings on the subject don’t clarify all of his views on the subject of the Mueller investigation. But they clarify certain big things, and those things are really not good for Donald Trump. Noah Feldman writes that “Properly understood, Kavanaugh’s expressed views actually support the opposite conclusion” than the one to which many knees are jerking. Feldman is exactly right. In some respects, he actually understates the case.

Kavanaugh’s writings on the subject of special counsel investigations did not begin with the 2009 Minnesota Law Review article. In 1998, he published in the Georgetown Law Journal an article he had written after leaving his job with Kenneth Starr’s investigation but before returning to the office to help write what became the Starr Report.

I remember this article vividly, because it was an unusual one for its time. This was a period in which a consensus had developed that the old independent counsel statute had to go. Conservatives had always hated it. Liberals had come to hate it. And, in fact, Congress would allow it to lapse in 2000 after everyone from Starr himself to the Justice Department urged its end.

Kavanaugh, by contrast, made the then-unpopular case that some independent counsel law remained necessary: “future debates,” he wrote, “should not focus on whether a special counsel statute is necessary, but rather on the more pertinent questions of by whom and under what conditions a special counsel should be appointed.” He went on to sketch out what a healthier independent counsel law might look like—healthier as a matter of constitutional law, as a matter of policy and as a matter of democratic governance. While Congress did not take him up on writing this particular law, his specific proposal bears attention today by those who are interested in how Kavanaugh might respond to the Office of Special Counsel in the age of Trump. Three things in particular stand out.

The first is that the structure he describes looks a great deal like the regulatory structure under which Robert Mueller serves. Yes, there are differences. Kavanaugh proposed (cleverly, in my view) that an independent counsel be appointed by the president with the advice and consent of the Senate; Mueller, by contrast, was appointed by the acting attorney general. But the key point is that Mueller was not, as happened under the old independent counsel law, appointed by a panel of judges. In other respects, Mueller’s appointment closely tracks Kavanaugh’s proposal. Kavanaugh would have given the president discretion as to when to appoint a special counsel; Mueller was appointed at the discretion of Trump’s administration. Kavanaugh’s proposal would have allowed the president to remove the special counsel, with or without cause; the regulation under which Mueller serves permits his removal for cause only, but the regulation itself can be rescinded at any time. And Kavanaugh’s proposal would allow the attorney general to determine the special counsel’s jurisdiction, precisely what the acting attorney general did in Mueller’s case. In other words, Mueller looks a great deal like the type of special prosecutor Kavanaugh wrote an entire law review article to propose.

This does not bode well for, say, an embrace of Steven Calabresi’s recent argument against the constitutionality of the Mueller probe should the president’s lawyers bring such a claim before a Justice Kavanaugh.

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?

Third, and perhaps most interestingly, Kavanaugh proposed in this article that Congress codify what he described as “current law of executive privilege available in criminal litigation to the effect that the president may not maintain any executive privilege, other than a national security privilege, in response to a grand jury or criminal trial subpoena sought by the United States.” Pause over that for a second. In 1998, Brett Kavanaugh stated his view (correct under Eighth Circuit precedent obtained by the Starr investigation) that current law already precluded the president of the United States from citing executive privilege in a criminal investigation. And he proposed that Congress codify this rule into a new independent counsel statute.

Note the strength of some of his language on this point: If the law permitted government officials to assert common privileges against the federal grand jury,

a government official (including the President or White House Counsel) safely could tell a White House or other agency attorney (or other official) that he destroyed subpoenaed documents, paid off potential witnesses, erased a subpoenaed tape, or concealed subpoenaed materials—or worse. The courts have rightly rejected the executive’s attempt to conceal such information, and Congress should codify those results to prevent future Presidents from trying the same gambit.

In other words, by the time Kavanaugh gave his speech in Minnesota, he had already written a developed statutory proposal that described a structure very much like that of the Mueller investigation; he had defended the very idea of such investigations; and he had described the president as having no executive privilege to assert before them.

Now let’s turn to the dreaded four pages of Kavanaugh’s 2009 Minnesota article. These pages nowhere suggest that he has rethought his view of the law. They nowhere suggest that he has come to believe in some constitutional defect in the structure he proposed in 1998, under a close cousin of which Mueller currently serves. They nowhere suggest that he has come to believe that the law of privilege is more favorable to the president than he outlined in his Georgetown article.

What the article says is that after having watched President George W. Bush up close for a number of years, serving as staff secretary and as a lawyer, Kavanaugh now believed he had previously underestimated the demands of the presidency and the dangers of distracting the president with civil and criminal matters. And he suggests as a policy matter that “Congress [should] enact a statute providing that any personal civil suits against presidents ... be deferred while the President is in office” and that “Congress should consider doing the same ... with respect to criminal investigations and prosecutions of the President.” He writes that “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.” And he adds in a footnote that, “For fairness’s sake, this proposal may also require extension of the relevant statutes of limitation.”

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.

There are a lot of questions about the Mueller investigation that could come before the court that neither Kavanaugh’s 1998 article nor his 2009 article addresses. Most immediately, can the president be compelled to testify before a grand jury? There are no tea leaves to read here on that or on whether the president can pardon himself. And in both articles, Kavanaugh leaves open the question of whether the president is amenable to indictment while in office (while saying that Congress should preclude such an indictment statutorily).

I suppose it is possible to worry that Kavanaugh’s stated policy preferences with respect to congressional action tease his likely judicial holdings on those subjects.

To me, however, the far more salient fact is that Kavanaugh has articulated a vision of a legitimate and appropriate investigation under our constitutional scheme and that it looks so much like the Mueller structure—and that he believes that the president of the United States has no common-law privileges before such an investigation. That is bad news for President Trump if Kavanaugh gets confirmed and finds himself ruling on any number of Mueller-generated questions.