Justice Brett Kavanaugh may already be giving some clues as to which side the U.S. Supreme Court will take when ruling on former President Donald Trump's immunity claims.
A legal review Kavanaugh wrote more than a decade ago says he has long believed that sitting presidents should be protected from prosecution because of the difficulty of the job and because there are other avenues to hold presidents accountable. It was suggested that
“If the president does something despicable, impeachment proceedings are possible,” Kavanaugh wrote in a 2009 article in the Minnesota Law Review. “No single prosecutor, judge, or jury can carry out the tasks that the Constitution gives Congress. Moreover, a president who is impeached and removed from office remains subject to criminal prosecution.”
Kavanaugh's opinion resurfaced during the Supreme Court's oral arguments in Trump v. United States on Thursday. The lawsuit centers on Trump's argument that presidential immunity should protect him from criminal prosecution.
Read Mr. Kavanaugh's own words here.
In addition to Kavanaugh, there is already tremendous pressure on Judges Neil Gorsuch and Amy Coney Barrett, who were appointed to the court by President Trump.
During Thursday's arguments, Kavanaugh, who was appointed in 2018, asked Trump's lawyers whether there was a “foundation” for immunity in the Constitution, asking whether there were aspects of presidential power that could not be criminalized. I asked the Ministry of Justice if there was.
In 2009, Kavanaugh argued that both criminal and civil prosecutions against sitting presidents should be deferred until the end of their terms, writing: “It is important to put the president above the law.'' “It's not about eliminating the checks on the president or eliminating checks on the president, it's just eliminating the checks on the president.” Postponing lawsuits and investigations until the president leaves office. ”
Alex Badass, a Supreme Court expert and University of Houston professor, told Barron's that the main focus of Kavanaugh's article is that it focuses primarily on delaying prosecution rather than avoiding it. He said this is one of the differences.
“Now that Trump is out of office, that may change our view of Trump's immunity claim,” Badass said. “It's unclear whether Mr. Kavanaugh will expand that view to include former presidents who are running for office. If he does, it's not clear if a president like Trump simply declares he's running every four years to avoid conflict.” There could be loopholes that could be created,” no matter what his actions are. ”
Badas also noted that legal reviews are typically used to provide new ways to interpret the law more broadly, whereas judgments focus on specific applications of these theories; He pointed out that legal review is different from judicial judgment.
“While Mr. Kavanaugh may theoretically support a broad form of presidential immunity or at least deferred prosecution, the article says nothing about what he thinks about this particular application of that theory. ” said Badass.
He added that Kavanaugh is not bound by the article he wrote 15 years ago, so he could change his mind or choose a different legal standard.
Associate Justice Brett Kavanaugh stands during a group photo of the justices at the U.S. Supreme Court on April 23, 2021 in Washington, DC. In 2009, Mr. Kavanaugh wrote a legal review of separation. A photo of the justices at the U.S. Supreme Court on April 23, 2021 in Washington, DC. Mr. Kavanaugh wrote a legislative review on separation of powers in 2009.More Erin Schaff/Getty Images
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