Brett Kavanaugh thinks only some presidents should be investigated

Newly revealed documents show that Trump’s Supreme Court nominee Brett Kavanaugh once favored the detailed grilling of a sitting president, when that president was a Democrat.

As a member of special prosecutor Ken Starr’s team during the Whitewater investigation, Kavanaugh wrote a memo in 1998 arguing for the extremely aggressive questioning of President Bill Clinton.

“I am strongly opposed to giving the President any ‘break’ in the questioning regarding the details of the Lewinsky relationship” unless he “resigns” or “confesses perjury,” Kavanaugh wrote. He further argued that Clinton “has required the urgent attention of the courts and the Supreme Court for frivolous privilege claims — all to cover up his oral sex from an intern.”

He added that the thought of “going easy” on Clinton was “abhorrent” to him and went on to suggest a series of intrusive and sexually explicit questions that were unrelated to the Whitewater case.

“If Monica Lewinsky says that you inserted a cigar into her vagina while you were in the Oval Office area, would she be lying?”

“If Monica Lewinsky says that on several occasions in the Oval Office area, you used your fingers to stimulate her vagina and bring her to orgasm, would she be lying?”

But in 2009, Kavanaugh changed his tune dramatically on whether presidents should be given any breaks from investigations while in office.

He argued that Congress should enact a law exempting a sitting president “from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel,” claiming it would be distracting and bad for the country.

“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,” he wrote. He argued that even simply “preparing for questioning is “time-consuming and distracting,” and that “a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.”

Clearly, such concerns were not important to Kavanaugh when he argued for the thorough investigation of Clinton in 1998. His dramatic shift in thinking conveniently occurred after he had already helped to impeach a Democratic president.

Kavanaugh’s past writings, about Clinton in particular and about exempting sitting presidents generally, raise the question of what he currently believes, and how he would rule if, for example, questions about special counsel Robert Mueller’s investigation ended up going to the Supreme Court.

Does Kavanaugh now believe a sitting president should not be given a break unless he resigns or confesses, as he said about Clinton? Or does he believe a sitting president should not have to divert his focus to answer questions in an investigation?

There are already plenty of questions about Kavanaugh and his ideology and the lengths to which he would go to further his own agenda. In 2016, for example, he told a conservative crowd that he would like to “put the final nail in” a Supreme Court decision that upheld a now-expired independent counsel law.

Kavanaugh has not said what other Supreme Court decisions he would gladly overturn if given the chance, but the record shows his hostility to safe, legal abortion. He openly praised Justice William Rehnquist’s dissent in Roe v. Wade, and as a circuit court judge, he tried to deny a 17-year-old immigrant access to an abortion.

Further, Trump has made it clear he intends to select judges who want to overturn Roe; Trump’s nomination of Kavanaugh suggests he believes Kavanaugh shares that goal too.

In fact, that Kavanaugh was selected by the Federalist Society, a group of far-right legal activists, guarantees he shares that view, as well as opposition to other critical rights for women, for workers, and for LGBTQ people, among others.

Kavanaugh’s record raises a number of serious concerns about who would be helped, or harmed, by his confirmation to the Supreme Court. Especially concerning is that we can’t be sure about his views on whether sitting presidents should be held accountable for their crimes — and whether those views will change depending on who the president happens to be.

Published with permission of The American Independent Foundation.