How Did Brett Kavanaugh Justify His Views on Presidential Power? His Words (In a Nutshell)

We will hear and read much on this topic. But it’s unlikely we will actually read direct quotes from his research.

This brief blogpost is a two paragraph summary of what Judge Kavanaugh said. It’s offered for your independent consideration.

As for me, I am taking time to think about this. 

Share your thoughts on FB or at mhl@illinois.edu.

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Brett Kavanaugh, “Separation of Powers During the Forty Fourth Presidency and Beyond,” Minnesota Law Review (2009)

One might raise at least two important critiques of these ideas. The first is that no one is above the law in our system of government. I strongly agree with that principle. But it is not ultimately a persuasive criticism of these suggestions. The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office.

A second possible concern is that the country needs a check against a bad-behaving or law-breaking President. But the Constitution already provides that check. If the President does something dastardly, the impeachment process is available. No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress. Moreover, an impeached and removed President is still subject to criminal prosecution afterwards. In short, the Constitution establishes a clear mechanism to deter executive malfeasance; we should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions. The President’s job is difficult enough as is. And the country loses when the President’s focus is distracted by the burdens of civil litigation or criminal investigation and possible prosecution.