We’re hearing a lot about how Kavanaugh thinks presidents should be largely immune from lawsuits, subpoenas and prosecutorial scrutiny while they serve as president. This appears to have been attractive to President Trump, unsurprisingly. These arguments stem mainly from a 2009 Minnesota Law Review article. The publication date was 2009. But it appears to have been first presented at a symposium in late 2008, while President Bush was still President.
But this wasn’t Kavanaugh’s first take on presidential power.
Kavanaugh was a young legal gun (early 30s) on one of the most thoroughly corrupt and brazenly partisan investigations in American history, the do-over Independent Counsel investigation which Ken Starr ran for most of the 1990s, investigating almost every aspect of Bill Clinton’s time in office and the decades which preceded his presidency. Kavanaugh, in addition to being part of the investigation, was also a or the principal author of the notorious Starr Report, a voluminous and gratuitous play-by-play narration of the Clinton-Lewinsky Affair and a brief for impeachment.
In that document, Kavanaugh argued for a comically broad theory of what constituted obstruction of justice and impeachable offenses. He suggested that Clinton’s efforts to delay being interviewed by the Independent Counsel amounted to obstruction of justice and that lying to his staff and the American people were impeachable offenses. Needless to say, by this standard, President Trump commits numerous impeachable offenses every single day.
Many commentators are now arguing that the youthful Kavanaugh had one view while the more seasoned District Court Judge saw the matter differently a decade later. Please. Kavanaugh showed a judicious flexibility to allow his views to evolve as they were applied to either Democrats or Republicans, to political foes or friends. There is nothing more pressing and relevant in this political moment than the President’s subservience to the rule of law. Kavanaugh has been all over the map on that question, depending on whether the President was a Republican or Democrat. That all needs to be sorted out before he becomes the deciding vote on whether President needs to answer to the law.
Oh, but it gets worse, as Politico is reporting today. The fix for Kavanaugh was in from the beginning.
After Justice Anthony Kennedy told President Donald Trump he would relinquish his seat on the Supreme Court, the president emerged from his private meeting with the retiring jurist focused on one candidate to name as his successor: Judge Brett Kavanaugh, Kennedy’s former law clerk.
Trump, according to confidants and aides close to the White House, has become increasingly convinced that “the judges,” as he puts it, or his administration’s remaking of the federal judiciary in its conservative image, is central to his legacy as president. And he credits Kennedy, who spent more than a decade at the center of power on the court, for helping give him the opportunity.
So even as Trump dispatched his top lawyers to comb though Kavanaugh’s rulings and quizzed allies about whether he was too close to the Bush family, potentially a fatal flaw, the president was always leaning toward accepting Kennedy’s partiality for Kavanaugh while preserving the secret until his formal announcement, sources with knowledge of his thinking told POLITICO.
Trump, who spent more time with Kavanaugh than the other finalists, was impressed with the judge’s credentials, long judicial record and fidelity to the Constitution, according to administration officials. What was listed as a deal-breaker to some on the right — his long paper trail — was actually the thing that drew Trump to Kavanaugh.
Administration officials said Trump was taken with Kavanaugh even before his conversation with Kennedy. But Kennedy, in leaving the impression with Trump that Kavanaugh would be a great candidate for the job, helped the president make up his mind.
It's looking more and more like Kennedy made a deal with Trump to name his own successor to the Supreme Court.
Source familiar tells NBC that Justice Kennedy had been in negotiations with the Trump team for months over Kennedy’s replacement. Once Kennedy received assurances that it would be Kavanaugh (his former law clerk) Kennedy felt comfortable retiring - @LACaldwellDC & @frankthorp— Geoff Bennett (@GeoffRBennett) July 10, 2018
Under these circumstances, with Trump under investigation, and with this evidence that there may have been a deal months in the making for Kennedy to retire and name his law clerk as a successor, there is no way Democrats should allow Kavanaugh to be confirmed.
We'll see what happens. Dems may not be able to do much of anything, frankly.
But dear God, they have to try.