Brett Kavanaugh is reformed … which is another way of saying that Brett Kavanaugh has very, very different feelings about the ability to prosecute a Democratic president and the ability to prosecute Donald Trump. Among other things, Kavanaugh’s past positions include some very strict ideas about how to handle a president who interferes with a special counsel.
As Mother Jones reports, Kavanaugh refused to answer any questions about how he might handle actions that Trump takes with regard to the Russia investigation or Special Counsel Robert Mueller. He also wouldn’t say if Trump can pardon himself or whether he has to respond to a grand Jury subpoena.
But Kavanaugh wasn’t always so hands-off in his view of how to deal with an executive who abuses his power. In a 1998 panel Kavanaugh stated that didn’t believe a president could be indicted. At a law review article the same year, Kavanaugh defended the idea of an independent counsel—so long as that counsel was named by the president. According to Kavanaugh, having the president name the independent counsel and the Senate approve “would dramatically diminish the ability of a president and his surrogates, both in Congress and elsewhere, to attack the independent counsel as ‘politically motivated.'”
Except—that’s a breathtakingly stupid argument. Making it only possible for the person who is the subject of an investigation to appoint the investigator, is a surefire way to never get an independent counsel. And the idea that having someone appointed by the president and confirmed by the Senate protects them from political attack by that party … please see Sessions, Jefferson. Or Rosenstein, Rod. Trump would have no problem at all savaging a counsel that he appointed. He does it every day.
Of course, if it had been up to Trump, there would be no special counsel. And that is Kavanaugh’s real intention. For Kavanaugh, a Republican president is indictment proof, subpoena proof, and special counsel proof. Because Kavanaugh’s theory is that the president is “too busy” to be bothered with ordinary things like following the law.
Which is certainly reflected in how Donald Trump just hasn’t managed a moment to play golf in the last two years. Because he’s so busy.
What makes Kavanaugh’s proposed changes to what was then the independent counsel law especially ludicrous is that his claims that his revisions would “insulate” the counsel are, for the most part, not written into the law. They’re completely dependent on the actions of a “wise” president. A “wise” president, according to Kavanaugh, would “oversee the special prosecutor at arm’s length” never getting involved in or obstructing an investigation. And for an extra dose of non-reality, Kavanaugh argues that the president’s “wiseness” would be enforced by Congress, who would “oversee how the president manages this task” and presumably rein him in should he cross the line.
So Kavanaugh’s idea of an “independent” counsel is one who is appointed by the president, serves at his pleasure, and has no other layers of appointed or elected officials to protect him from direct management by the president. It’s an independent counsel—without the independent. This is a position description for the president’s personal attorney.
Of course, Kavanaugh did declare that firing the independent counsel should come with the ultimate sanction saying that if the president were to fire the independent counsel, “impeachment proceedings would not be far behind.” Which is a threat that exists in the same alternate dimension as the “wise” president of Kavanaugh’s dreams.
From everything he wrote in 1998, Kavanaugh should be speaking out against the way Trump has attacked the DOJ, Attorney General Sessions and Deputy Attorney General Rosenstein. He shouldn’t be afraid to say that, should Trump shuffle the deck at the DOJ and fire Special Counsel Robert Mueller, the appropriate remedy is impeachment. But he hasn’t. Instead, he refused to answer any questions that came close to the boundaries of executive power.