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President Donald Trump's nominee for the Supreme Court has concluded that the presidency is such a unique and challenging job that the White House occupant should be shielded from indictment, prosecution, or interrogation while in office.
Trump, who has inveighed repeatedly against the 'witch hunt' of special counsel Robert Mueller's probe, selected Judge Brett Kavanaugh to fill the seat of retiring Justice Anthony Kennedy.
Kavanaugh, in a 2009 Minnesota Law Review article on Separation of Powers, wrote that the indictment of a sitting president could 'cripple' the government.
Although he worked with Ken Starr on the report that featured in President Clinton's impeachment, Kavanaugh concluded in hindsight that 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.'
It was that case that eventually led to revelations about Monica Lewinsky that were part of the the impeachment case assembled against him by Starr and then by Republican senators. Clinton was deposed in the case.
Kavanaugh wrote in support of Congress passing legislation to protect a president from prosecution or investigation while in office.
'In particular, 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,' he wrote.
IN HINDSIGHT ... Judge Brett Kavanaugh speaks after being nominated by US President Donald Trump (L) to the Supreme Court in the East Room of the White House on July 9, 2018 in Washington, DC. He wrote that it would have been better if President Clinton never had to deal with the Paula Jones sexual harassment lawsuit
He wrote that there would inevitably be charges, including under the expired Special Council Act, that such investigations are politically motivated.
'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. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis,' he continued.
'Even the lesser burdens of a criminal investigation— including preparing for questioning by criminal investigators— are time-consuming and distracting. Like civil suits, criminal investigations take the President’s focus away from his or her responsibilities to the people. And a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.'
Kavanaugh wrote a detailed article where he argued president's shouldn't suffer being sued or prosecuted while in office – but maintained impeachment as a possible remedy for misconduct
In addition to the Mueller probe, authorized by the Justice Department, Trump faces a civil lawsuit from Sumner Zervos, who claims Trump sexually harassed her.
Kavanaugh acknowledged that his position on the subject has evolved.
'This is not something I necessarily thought in the 1980s or 1990s. Like many Americans at that time, I believed that the President should be required to shoulder the same obligations that we all carry. But in retrospect, that seems a mistake,' he wrote.
However Kavanaugh does not believe the president should be immune from the political remedy contained in the Constitution.
'The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office,' he wrote, acknowledging a counter-argument.
'A second possible concern is that the country needs a check against a bad-behaving or law-breaking President. But the Constitution already provides that check. If the President does something dastardly, the impeachment process is available,' he wrote.