We don't know what motivated Donald Trump's decision to pick longtime conservative activist Brett Kavanaugh for a Supreme Court seat, but it's a pretty sure bet that Trump, currently facing allegations that his campaign eagerly attempted to conspire with Russian government agents in a partnership to tip the scales of the American presidential election, picked Kavanaugh for Kavanaugh's unique (and nutty) premise that you cannot so much as investigate charges against a sitting president.
It is, in fact, the distinguishing feature between Kavanaugh and the rest of them. Every one of the finalists selected from the Federalist Society's list of approved hard-right legal arsonists could each be assured of voting "correctly" on key conservative issues such as abortion, corporate rights, and limiting consumer and voter powers; Kavanaugh is alone, however, in stating such a blunt and convenient opinion on the single issue most dear to Donald Trump's own heart: Donald Trump's personal legal well-being. If it is up to a future Justice Brett Kavanaugh to rule whether a sitting president has to cooperate in a probe into Russian election hacking that has already implicated core members of his administration and campaign staff, and that is more likely to happen than not, Kavanaugh alone is on the record saying investigators can pound sand.
And if you think that played no role in Donald's Trump choice to pick him as potential defender, you have not been paying attention to the man. Donald Trump is obsessed with shuttering this single probe; Donald Trump spends more of his time demanding the shuttering of the investigation than he does blustering on any other topic. According to his own staff, it consumes him. According to his Twitter feed, it is nearly always on his mind.
So that is why Donald Trump has landed upon Brett Kavanaugh as his new pro-bono legal defender, but the story of just how Kavanaugh came to such an (ahem) unusual epiphany is both a wee bit bizarre and a wee bit unflattering to both the man and the movement. It is a microcosm of conservative "legal" thinking of the sort that the Federalist Society and other hard-right activist groups have so furiously pushed as the only "legitimate" judicial temperament, in that it appears to be entirely situational. Kavanaugh used to have one opinion, an opinion on which his then-current career was foundationally based. Then the presidency shifted hands, the persons under investigation switched places and—lo and behold—so did Kavanaugh's beliefs. It was most definitely not Kavanaugh’s opinion, though, back when he worked as one of the top lieutenants probing Republican conspiracy theories under Ken Starr.
It is difficult to explain why Kavanaugh came to the conclusion that Presidents Ought Not Be Investigated only after serving as one of the key figures in Ken Starr's aggressive and boundless investigation of the unending Republican conspiracy theories about President Bill Clinton. As one of Starr's top lawyers, Kavanaugh was back then an aggressive believer in the notion that he and his fellow avid Republicans could investigate a sitting president as much as they wanted and for the most spurious of reasons; Kavanaugh was apparently quite happy to do so, given that he was tasked with some of the Starr investigation's most stupid and conspiratorial of queries.
The kids today will never fully understand just how unrelentingly ridiculous the Whitewater era was. It was basically Benghazi! in which Republicans were accusing Hillary Clinton of not of botching national security concerns, but improperly something-something land deals in Arkansas. That was the riotous scandal supposedly at the heart of the rest of it, but it immediately began to encompass "and is running drugs for the South American cartels" and "secretly murdered a White House staffer because reasons" and/or "eff it, is probably in league with the lizard people, while we're at it." This was not fringe. This was Republicanism, root and branch. Basically every last Republican was Glenn Beck sniffing whiteboard markers back then, and that means Ken Starr's team, including Brett Kavanaugh, was tasked with combing through the details of every shrieking nutcase's fever dreams in an effort to provide the Republican Congress with even the smallest gossipy tidbits to plaster into fundraising letters.
Ken Starr and his team took to the task with relish, expanding their probe into any realm that looked like it had even the slightest chance of turning up dirt on Republican opponents. Kavanaugh, notably, was tasked with investigating the nasty and already probed and disproved conservative conspiracy theory positing that White House lawyer Vince Foster, who had committed suicide during his White House tenure, was actually secretly murdered inside the White House by the Clinton team and spirited out to a public park via a network of secret tunnels, and I am not fucking kidding about any of that. That was Kavanaugh's own small contribution to our national discourse, and you can make a solid argument that anyone even slightly involved with peddling Vince Foster theories is not of proper temperament to be on any court, anywhere, much less the one with the biggest chairs and longest desk. But the man helped his team dutifully chase that and other squirrels as far as he could go; after every single lunatic theory ran dry the Starr team finally settled on a presidential extramarital affair as the thing worthy of impeachment, Republicans gave it a shot, got themselves humiliated rather thoroughly, and we were rid of the cretinous Newt Gingrich for the next twenty years while the party tried to pretend none of that had just happened.
That was Kavanaugh's role then: As a member of a special investigation chasing down every Republican conspiracy any idiot anywhere could dream up, the rough equivalent of Fox & Friends as legal team. Almost immediately after his stint on the Starr investigation he went on a public apology tour of sorts, expressing his gentlemanly misgivings about how partisan the whole business had looked and suggesting fixes around the edges, which one could either take as sincere or the usual bit of necessary mopping up for a man emerging from the neck-deep mud of partisan lunacy, now looking to be appointed to something more proper and permanent.
(That would be the chiming bell of the man’s whole life: Egregiously partisan acts and egregiously ideological proclamations, neatly surrounded both before and after with protestations that it was all because he was scholarly and thoughtful and other words that government-shanking conservative activists pre-chisel on their tombstones and claim to have sole dominion over. It is the hallmark of every judicial confirmation hearing; just because the nominee has expressed crackpot ideas in the past does not mean he will express crackpot ideas in the future, once we take off the legal constraints of abiding by another court’s law. You can trust him, he has written articles. With footnotes.)
But time passes and presidents change, the parties switch positions, and like clockwork scholarly and thoughtful minds switch their own positions according the needs of the moment, that being the very definition of scholarly and thoughtful. The next president came on the scene, a certain George W. Bush, and the ideologically rigorous conservative administration managed to get themselves mired in some, to use the technical legal term for such things, bad stuff. Eight years of it, to be precise, and from beginning to end the new team found themselves in precarious legal positions.
That means they broke the law. Several. Repeatedly, and in a few now-famous cases quite openly. This could have been a problem for an ideological bloc that had just attempted to burn a non-conservative White House down for considerably less substantial would-be threats to the rule of law; fortunately, as history records, none of them gave a damn.
It was in that context that legal scholar Brett Kavanaugh, conservative superthinker, and Bush White House official himself, until he was elevated to a new post as D.C. Circuit judge in 2006, would have his Very Important Change of Heart. After the Bush administration, in eight years, he oversaw the apparently politically motivated outing of a covert CIA agent whose husband criticized his administration, promoted what turned out to be fabricated evidence in their efforts to stoke public fervor for a new ideologically premised military adventure in Iraq, launched a program to purge the Justice Department of non-Republican staffers and authorized a systemic program in which wartime prisoners were tortured for information in unambiguous violation of international law.
Kavanaugh suddenly discovered that he in fact had a view completely contrary to the one that had launched his career a decade earlier: After considerable thought, a comparison of the various "disputes" that arose under the two administrations and in the midst of demands that the new Obama administration throughly investigate and, if necessary, prosecute those in the Bush administration who conspired to justify and carry out war crimes, Kavanaugh apropos-of-nothing-in-particular published a new opinion piece declaring that even investigating criminal acts by a sitting United States president had become an intolerable burden on the presidency and proposing that we draft new laws barring investigators and the courts from doing that.
Now, this may be because Brett Kavanaugh is a deep thinker who just coincidentally had a holy revelation on the nuances of our constitutional system at the precise moment the rest of the nation was debating whether or not George W. Bush's team should be held legally responsible for international war crimes. It is possible. It might also be because Brett Kavanaugh, former Ken Starr cog whose service to partisan legal maneuvering of the worst and most hackish sort was noticed and extremely well rewarded after he had done his previous stint, now expressed the opposite opinion because this new opinion was considerably more convenient, after the nation had suffered through a Republican administration caked in scandal from head to toe, to have. It was not quite let bygones be bygones, but it was at least let's all agree to put the bygones in a box and come back to them later, after emotions have died down.
The theory that a president could not be investigated even for criminal acts, at least not until he had left office, was and still is an extremist proposal, but the general premise—that the presidency is too great a position to be bound by the petty laws the rest of you folks live by—was the one of the foremost Fox News talking points of the hour, and so it is hardly surprising that the (ahem) scholarly Kavanaugh himself just happened to stumble upon it, and have an urgent opinion on it, in that same moment of time. And Kavanaugh indeed began his argument by invoking the specter of "new and even greater" al Qaeda attacks as a foremost reason why we must not allow our presidents to be distracted from with petty legal proceedings: That, too, was coincidentally the Fox News reasoning of the moment.
As another coincidence, Kavanaugh was as D.C. Circuit judge one of the fiercest judicial advocates for the notion that international law does not apply to United States prisoners held at Guantanamo, defending both their indefinite detention and their nebulous status as defendants protected neither by international nor, in fact, by United States law.
As yet another coincidence in quite the thread of coincidences, Kavanaugh was asked during his 2006 confirmation hearings about his own role in those very Bush White House efforts to craft plausible legal justification for the indefinite detention and possible torture of war prisoners. He claimed to have weighed in on no such issues. It turned out, after his confirmation hearings had been long-since completed, that he had lied.
Kavanaugh was not just opining on which laws must be suspended and for how long in order to afford a president the maximum leeway for doing his presidenting, when he wrote his 2009 article reversing himself on the topic; he was doing so in the context of a debate over what most non-conservative legal minds of the world believed to be a self-evident crime committed by a president, on an issue that Kavanaugh himself had his own fingerprints on as a member of that president's administration.
Coincidentally, of course.
Every time this rather alarming suggestion comes up, the notion that blatant self-serving flimflammery is perhaps a more potent glue holding conservative judicial activism together than any pretenses at channelling the spirits of ye olden times and Ouija-boarding their holy guidance into our modern world, we are repeatedly told that it is horribly uncouth and insulting to think such things, much less say them out loud. We are mostly told this by conservative pundits, but also by the hastily provided stream of friends and office-sharers of the conservative ideologue of the moment. The man carpools, for goodness sake; he has offspring, and is therefore a gentleman above reproach.
And yet it is always remarkable when high-profile conservative legal minds just happen to entirely reverse longstanding, career-defining beliefs at the moment those beliefs clash with the more prominent needs or talking points of their own ideological cohort, and by remarkable we mean effervescently predictable, because it happens with stunning regularity. It is the hallmark of conservative jurisprudence, and the reason court-watchers have forever been able to predict exactly how Justices Thomas, Alito, Scalia, and Roberts himself will rule in nearly all cases. Do our prior conservative opinions conflict with the desired conservative outcome in this or that particular case? Surprise, it turns out we do not have those opinions anymore. Have we spent our entire lives demanding fealty to precedent? Surprise, we meant in all cases except this one. And that one. And this one over here.
Whatever the case, Kavanaugh has now come to believe that sitting presidents cannot be investigated for crimes, period, which may be the single-most important reason why a president whose closest allies are under criminal investigation really, really wants this particular conservative hardliner on the Supreme Court.
There seems little question that Kavanaugh will oblige him, if it comes to that. Kavanaugh's first speech after his nomination was notable for obsequious and utterly unnecessary praise of Trump's diligence in choosing him; the spectacle was uncannily similar to Trump's initial choice for surgeon general, the White House doctor who praised him as uber-healthy specimen of humanity a mere half-gene away from being able to fly and shoot down missiles with his eyes. Trump has a keen eye for those willing to bend themselves to his service; it may be the only skill he has shown any real expertise in.
And that remains a hell of a thing, because with the Kavanaugh nomination Donald Trump is attempting to install a Supreme Court justice who will insulate himself and his most immediate friends and business partners from an escalating investigation into criminal wrongdoing—by choosing the one candidate who has piped up with the radical notion that presidents should not be subject to such criminal investigations at all.
That is one coincidence too far. Even if we were to believe that the scholarly and thoughtful Kavanaugh just happened to change his judicial opinions according to the most urgent needs of his own ideological cohorts (and past administration friends), the notion of having a president coincidentally stumble on the ideological ally most likely to scuttle investigation into criminal wrongdoing by his own administration ought to be absurd to us.
We are a country, not a cartel. This shouting turnip should not be able to pick our judges at all, while the probe churns forward, much less stack the courts with allies chosen for their willingness to sabotage the investigations he faces. Even his own friends have not been circumspect in their worries that an indictment of this or that of Trump's partners will, with the proper prosecutorial pushing, reveal criminal acts by Trump himself; everyone around him is convinced the man is a crook. The song-and-dance by Trump allies has been focused explicitly on ending the investigation into Russian hacking before it can look too far or into too much.
In this moment, in this administration, Trump could not ask for a better would-be partner than a potential Supreme Court justice already on record as believing presidents ought not be investigated at all.