BY JOE CONASON
To Donald Trump, the qualifications of any individual for a seat on the nation’s highest court are meaningless. He knows nothing of judicial decisions except Roe v. Wade, the reproductive rights precedent that his supporters want overturned. He has no idea how to assess any judge, beyond his own superficial impressions. He could scarcely care less what any potential nominee may think about the law – with one important exception.
That exception brought us Brett Kavanaugh, winner of Trump’s Supreme Court sweepstakes, and an advocate of executive immunity from precisely the kind of investigations and lawsuits that now threaten this president.
Naturally, Kavanaugh displays all the right [and far-right] credentials, including a Yale law degree, a career dedication to the Federalist Society, and a lifetime of activism in the Republican Party, as well as a current position on the prestigious Second Circuit Court of Appeals. As Democratic senators warn, he can be expected to vote consistently to please his party’s major donors on everything from health care to voting rights. He probably hasn’t changed his mind on any public issue since college.
But Trump chose him over all the cookie-cutter conservatives because of the single occasion when Kavanaugh radically shifted position. In a 2009 law review article, he argued that the president, unlike any other citizen, should remain immune from criminal investigation or civil litigation while in office.
He urged Congress to pass legislation enacting such an exemption because the burdens of the presidency are too overwhelming to permit any such distractions before his term expires. That doesn’t mean a president is above the law, he hastened to add, only that any criminal prosecution or civil lawsuit be held in abeyance.
Should the chief executive do something “dastardly,” Kavanaugh notes reassuringly, there is always the remedy of impeachment.
Coming from a jurist advertised as brilliant, this is simple-minded guff. Kavanaugh doesn’t say what should happen if a top aide to the president – someone like Michael Flynn, the former national security adviser – perpetrates a felony. Should the president be exempted from testifying against an aide? What if he refuses to testify or provide evidence? What if a prosecutor learns that the president has violated the law, too? How would an impeachment proceed without a distracting investigation?
Kavanaugh’s concern for the beleaguered presidency would be more convincing if not for his own personal history. As a prosecutor in the Office of Independent Counsel, he was among the most avid and vengeful advocates of the impeachment of Bill Clinton. He insisted that Kenneth Starr humiliate Clinton in the grand jury probing his relationship with Monica Lewinsky. But his partisan zeal may have carried him even further.
During the period leading up to impeachment, Kavanaugh was closely associated with a secretive cohort of young conservative lawyers – known as “the elves” – who were determined to bring Clinton down. Veteran elves who later became famous included Ann Coulter, Laura Ingraham and George Conway III, husband of Kellyanne.
To prolong the Paula Jones sexual harassment lawsuit against the president, the elves made sure that she didn’t settle the case before it could be turned into a criminal prosecution. Aiming for maximum embarrassment, they leaked “fake news” to the Drudge Report, including a fabricated claim about the shape of Clinton’s penis that later made Jones look like a liar. Ultimately, they conspired with prosecutors in Starr’s office to arrange a perjury trap for Clinton.
None of the elves or their prosecutor pals ever came clean about those highly questionable actions. George Conway dodged a subpoena to avoid testifying about his behavior under oath. Kavanaugh’s law review article daintily omits any mention of his own role in impeachment or any of those dubious machinations.
Perhaps now, the senators who will consider this nomination will require Kavanaugh to explain what he and his friends did to take down Clinton. More pointedly, they can inquire how he came to believe that a president should be tantamount to a monarch. They can find out whether he believes this president is required to testify under oath in a national security investigation that may involve collusion with a hostile power, whether this president can obstruct justice without penalty, and whether this president can pardon himself.
And if they find that he would fail to uphold the Constitution and oppose Trump’s authoritarian ambitions, then they must reject Brett Kavanaugh as unfit for the Supreme Court.
– Joe Conason’s columns appear regularly in The Oklahoma Observer