Politics - News Analysis

Trump May Soon Possibly Regret Putting Justice Kavanaugh on the Supreme Court

Medical research is published in prominent journals like The Lancet or The New England Journal of Medicine. Legal scholarship isn’t as prominent (Usually) but is published in what are called “Law Review” articles, the most prominent of which is the Harvard Law Review – of which Barack Obama was editor.

It is the highest honor as a student to be “on” the law review. Law students don’t write the articles, but they edit them to ensure that the author isn’t taking shortcuts or misconstruing arguments. Usually professors and sometimes prominent lawyers write articles for law review.

Brett Kavanaugh wrote an article for Minnesota Law Review (A perfectly respectable law review publication; nearly every law school, even the ambulance chaser schools, have law review publications) in 2009 when Kavanaugh clerked for a US Circuit Judge, another high honor – and argued that a president should not be investigated nor prosecuted while in office.

The Department of Justice already has a standing rule that they do not prosecute presidents while in office – the argument was more about investigations. But, critically, Kavanaugh argued that law enforcement should investigate and prosecute a president once he or she leaves office.

Conclusion? There is no presidential immunity once a president leaves office unless it was a truly presidential act. There was speculation at the time that Trump appointed Kavanaugh when he did so because Kavanaugh believed a president shouldn’t be investigated. Now the tables are turned.

According to an article in The Insider, Kavanaugh wrote:

“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.”

Kavanaugh knew of the answer to a president who committed a gross error in judgment or action:

“If the President does something dastardly, the impeachment process is available. No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress,” Kavanaugh wrote. “Moreover, an impeached and removed President is still subject to criminal prosecution afterwards.”

Jonathan Entin – a retired Constitutional law professor from Case Western Reserve Law School stated:

I don’t read that as saying that Kavanaugh would agree with the Trump argument about you have to be impeached and removed before you can be prosecuted. I read that part of the article as saying that the President is not subject to indictment and prosecution while in office. That is a position that the Department of Justice has maintained under both Democratic and Republican administrations alike.

Yes, well – I don’t read the article as saying that either and I don’t see it as answering the real question. No one really believes that the president has blanket immunity while in office. Kavanaugh says Congress must investigate and impeach first – giving Trump no immunity after leaving office. However, this question gets down to how one determines whether the action was a presidential duty or not.

Action occurring outside the president’s duties would be subject to prosecution. Those inside a president’s duty would not. A good bet as to how this case will turn out is that the case will be sent back down for a determination (factual) as to which acts fall inside and which fall outside Trump’s duties as president – and then that determination can be appealed, all before trial. (Suits against the police are often handled with the immunity question appealed prior to trial because it would prevent an expensive trial if immunity attaches.)

The presidential immunity question is only seen as ridiculous because Trump’s actions were so obviously outside his presidential duties. He told Mike Pence to ignore the Constitution!

Regardless, it seems that Brett Kavanaugh will not find that Trump is 100% immune and would be one of those justices who may send the case back down for more fact-finding.


Jason Miciak is Executive Editor of Political Flare and is an Editor at Large for Occupy Democrats and can be reached at [email protected]

meet the author

Jason Miciak is a political writer, features writer, author, and attorney. He is originally from Canada but grew up in the Pacific Northwest. He now enjoys life as a single dad raising a ridiculously-loved young girl on the beaches of the Gulf Coast. He is very much the dreamy mystic, a day without learning is a day not lived. He is passionate about his flower pots and studies philosophical science, religion, and non-mathematical principles of theoretical physics. Dogs, pizza, and love are proof that God exists. "Above all else, love one another."


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