What Brett Kavanaugh seems to believe about the powers of the presidency makes him a uniquely dangerous nominee for a seat on the Supreme Court, especially for those of us who still believe in the Madisonian ideal of separated and balanced powers which at one time was the hallmark of conservative constitutionalism.
The most telling example of this danger is his view that a president who commits a crime cannot be indicted. In short, that contrary to the most basic tenets of the American government, presidents, at least as long as they’re in office, are not subject to the same legal consequences any other American citizen would face. James Madison and Alexander Hamilton were at considerable odds over the role of the executive but on this there is no question they would find Kavanaugh’s views preposterous.
Of course a sitting president can be indicted. The fact that a group of lawyers in an executive branch office (in this case, the Office of Legal Counsel in the Justice Department) has decided it would be bad policy to do so has absolutely no legal standing (OLC lawyers are not judges; they are only lawyers who have a president as a client and like most lawyers try to find a way for their clients to do what they want to do). Their claim that presidents cannot be indicted has no basis in the Constitution and flips the Constitution’s clear goal (constraining executive dominance) on its head. Any attempt to declare a president immune from the legal consequences that apply to other citizens would amount to a repudiation of Constitution itself and undo the very foundations of American government.
What evidence in the Constitution contradicts this strange proclamation of non-indictability? First there is the simple fact that the founders created no such exemption for a chief executive despite unmistakable evidence that the question of legal liability was very much on their minds. Article 1, Section 6, for example, notes that members of Congress (the branch of government to which most major powers were assigned) “shall in all cases, except Treason, Felony, and Breach of the Peace, be privileged from arrest during their attendance at the Session of their respective Houses, and in going to and returning from the same . . . “ The question of when public officials would and would not be subject to the laws was clearly not absent from the Founders’ considerations. What’s more, the exemption applies only to misdemeanors, not felonies, and even those misdemeanors are not exempted from legal consequence when the Congress is not actually in session. Even this small exemption from legal consequence was meant as a check on the presidency and was born out of the experience of chief executives (kings) arranging to have their rivals arrested before they could arrive at Parliament to block kingly maneuvers.
What about cases specifically involving the president? In Article 1, Section 3, where the Constitution spells out procedures for impeachment, it also spells out clearly that while impeachment extends only to removal from office, the party convicted (in this case a president) “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” That provision does not claim a president is subject to legal consequence only if convicted; it simply makes clear that Impeachment and Indictment are similar but different: impeachment, a political decision by Congress, has to do with subjecting a president, if convicted by the Senate, to being booted from office. That has nothing at all to do with the question of whether the president is somehow immune from ordinarily legal consequences. It is a statement fully in accord with the Founder’s clear intent that public officials be subject to the same laws that apply to all other citizens and that impeachment and indictment are separate matters and the application of one does not preclude the other. To claim otherwise is akin to suggesting that if one of us were to steal from an employer’s treasury and in doing so violate company policy, being fired would preclude arrest.
So if the Justice Department policy is not based on the Constitution but on concerns about the effect of disrupting the presidency, how well does that argument hold up? Here the principal argument seems to be that the presidency requires a president’s full-time attention to his tasks as head of government and that being subject to indictment and trial would be too diverting. (Some wags have dismissed that concern by pointing out that presidents are frequently diverted anyway by the time they spend attending to campaign rallies, vacations, and golf dates. That argument, however, is not valid because the presidency travels with the president, who always has the tools of instant communication close at hand). So how do we counter this claim that an indictment would be too “diverting”?
First, of course, there is the fact that the Constitution permits presidents to face impeachment and trials for removal from office; as Bill Clinton can testify, this constitutional procedure is about as diverting as anything can be, which did not seem to bother the Constitution’s authors. Next, let’s go back to that claim that the president is head of government: not so; he’s head of state, but there is no “head of government” in the United States. The president heads the branch charged with seeing that the laws (enacted by Congress) “be faithfully executed” (Article 2, Section 3). George Washington and Alexander Hamilton referred to the office of president as the “chief magistrate.”.Clearly the powers of the presidency have expanded greatly since that time but it is nonetheless true that (a) laws are made, funded, and/or overturned by Congress, which also is empowered to decide on whether to go to war, establish rules for international commerce, etc., so diverting the president would simply require that the Congress again assume its constitutional obligations rather than acceding to presidential “directives”; (b) the executive branch contains departments and agencies charged with ensuring that the laws are administered and a presidential indictment and conviction would not impede the carrying out of those responsibilities; (c) in the event of the president’s inability to perform his duties, the 25th Amendment provides a process by which “principal officers of the executive departments” can declare a president “unable to discharge the powers and duties” of the office and establish the vice president as “acting president.” So if one wishes to seriously argue that dealing with an indictment and trial would make it too difficult for a president no longer able to do his job, nothing would change: the legal processes would unfold and the government would continue to function.
To be clear, I am not advocating that the current president be indicted; the current inquiries have not yet produced sufficient information to justify that result. But the claim that a president could not be indicted even if investigations revealed cause for indictment cannot be allowed to go unchallenged. The idea that a president should be immune from ordinary legal processes might be a good “thought exercise” of the kind lawyers and law professors enjoy (no criticism; I enjoy it, too), but to actually carry out such a policy would make hash of the our constitutional system and do exactly what the Founders were determined to prevent: create a presidency that is above the law. It’s an idea suitable for coffee break “what ifs” but one utterly undeserving of serious consideration.
Here’s something for Republicans in the Senate to consider: Although Democrats are furious about the Kavanaugh nomination, before the recent allegations of sexual assault, that was based solely on short-term policy goals having to do with the possible consequences for specific issues. Granted, those issues are important and how Kavanaugh might rule (on abortion rights, for example) are legitimate bases for opposing his appointment. But for Republicans, the issue is quite different: it is the political left that has been the greatest advocate for centralized government and greater presidential power, something that conservatives have adamantly opposed for at least 90 years. Placing a champion of expanded presidential authority smack in the middle of a divided court, especially one as young as Judge Kavanaugh, who could serve for decades, should make every true conservative shudder.
In years past, when a Republican president occupied the White House, Republicans in Congress supported changes to give the president authority to strike items from appropriations bills the legislature had passed. The argument was that Ronald Reagan or George H.W. Bush would provide better spending decisions than the then-Democratic-controlled Congress. It did not seem to occur to them that a Democrat might someday be elected. Today, Republicans seem fine with putting on the Supreme Court a man whose decisions would strengthen the current Republican president. But there will be another Democrat in the White House at some point and he or she will have every expanded power a Brett Kavanaugh would give Donald Trump. Something to think about.
Mickey Edwards, a former Republican representative from Oklahoma, is vice president and program director of The Aspen Institute.