Month: July 2018

Judge Brett Kavanaugh on separation of powers (Part 2)

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There has been a lot of commentary about Judge Brett Kavanaugh’s law review articles on the investigation, indictment and prosecution of a president, but I believe you should see selected excerpts from his writings for yourself.

Here is a link to his 2009 Minnesota Law Review article Separation of Powers During the Forty- Fourth Presidency and Beyond Copyright © 2009 by Brett M. Kavanaugh (selected excerpts):

Based on my experience in the White House and the Justice Department, in the independent counsel’s office, in the judicial branch as a law clerk and now a judge, and as a teacher of separation of powers law, I have developed a few specific ideas for alleviating some of the problems we have seen arise over the last sixteen years. I believe these proposals would create a more effective and efficient federal government, consistent with the purposes of our Constitution as outlined in the Preamble. Fully justifying these ideas would require writing a book—and probably more than one. My goal in this forum is far more modest: to identify problems worthy of additional attention, sketch out some possible solutions, and call for further discussion.

I. PROVIDE SITTING PRESIDENTS WITH A TEMPORARY DEFERRAL OF CIVIL SUITS AND OF CRIMINAL PROSECUTIONS AND INVESTIGATIONS

First, my chief takeaway from working in the White House for five-and-a-half years—and particularly from my nearly three years of work as Staff Secretary, when I was fortunate to travel the country and the world with President Bush—is that the job of President is far more difficult than any other civilian position in government. It frankly makes being a member of Congress or the judiciary look rather easy by comparison. The decisions a President must make are hard and often life-or-death, the pressure is relentless, the problems arise from all directions, the criticism is unremitting and personal, and at the end of the day only one person is responsible. There are not eight other colleagues (as there are on the Supreme Court), or ninety-nine other colleagues (as there are in the Senate), or 434 other colleagues (as there are in the House). There is no review panel for presidential decisions and few opportunities for do-overs. The President alone makes the most important decisions. It is true that presidents carve out occasional free time to exercise or read or attend social events. But don’t be fooled. The job and the pressure never stop. We exalt and revere the presidency in this country—yet even so, I think we grossly underestimate how difficult the job is. At the end of the Clinton presidency, John Harris wrote an excellent book about President Clinton entitled The Survivor. I have come to think that the book’s title is an accurate description for all presidents in the modern era.

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Judge Brett Kavanaugh on Independent Counsels (Part 1)

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There has been a lot of commentary about Judge Brett Kavanaugh’s law review articles on the investigation, indictment and prosecution of a president, but I believe you should see selected excerpts from his writings for yourself.

Here is a link to his 1998 article in the Georgetown Law Journal. THE PRESIDENT AND THE INDEPENDENT COUNSEL, 86 Geo. L.J. 2133, Copyright (c) 1998 by the Georgetown Law Journal Association; Brett M. Kavanaugh (selected excerpts):

The conflicts of interest under which the Attorney General labors in the investigation and prosecution of executive branch officials, particularly high-level executive branch officials, historically have necessitated a statutory mechanism for the appointment of some kind of outside prosecutor for certain sensitive investigations and cases. As the Watergate Special Prosecution Task Force stated in its report, “the Justice Department has difficulty investigating and prosecuting high officials,” and “an independent prosecutor is freer to act according to politically neutral principles of fairness and justice.” This article agrees that some mechanism for the appointment of an outside prosecutor is necessary in some cases.

Kavanaugh makes six proposals to amend the independent counsel statute. The independent counsel statute was allowed to expire on June 30, 1999. Kavanaugh’s recommendations were ignored and were never enacted.

Whether the Constitution allows indictment of a sitting President is debatable (thus, Congress would not have the authority to establish definitively that a sitting President is subject to indictment). Removing that uncertainty by providing that the President is not subject to indictment would expedite investigations in which the President is involved (Watergate, Iran-Contra, and Whitewater) and would ensure that the ultimate judgment on the President’s conduct (inevitably wrapped up in its political effects) is made where all great national political judgments ultimately must be made—in the Congress of the United States. [Inferring by Impeachment.]

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How to Level the Playing Field for Workers — Even with Unions Hurting

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A federal jobs and income guarantee could protect workers the way unions once did.

The Supreme Court’s decision in Janus vs. AFSCME dealt organized labor, already on its heels, a crushing blow. Public employees who choose not to join unions now cannot be required to pay so-called “fair share” fees to compensate unions for the cost of representing them in wage and benefit negotiations.

With only 6.5 percent of private sector workers unionized, teachers, firefighters, and other public employee unions have been the bulwark of organized labor in recent years. Over a third of government workers are unionized, but that will likely head south in the wake of Janus.

Absent a union, an individual employee negotiating against a large employer is powerless. If the employer and worker don’t agree to terms, the employer loses one worker out of many, while the employee’s children go hungry. Guess who wins?

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Judge Kavanaugh provided misleading testimony in his previous confirmation hearing

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Lost in the media memory hole is the fact that Brett Kavanaugh, then an adviser to President George W. Bush and one of his most controversial judicial appointees, had to go through the nomination process twice because of strenuous objection to his nomination, once in 2004 and again in 2006.

Roll Call recently reported, Democratic Senators Once Accused Potential Trump SCOTUS Pick of Offering Misleading Testimony:

Senators might find themselves debating whether the judge gave false testimony about detainee policy the last time he had a confirmation hearing.

That is in part because the two senators who suggested Kavanaugh may have misled them still serve on the Judiciary Committee.

Kavanaugh’s potential connection to the detention policies in the early 2000s stems from his work as a lawyer in the White House during the George W. Bush administration.

The question of what Kavanaugh knew about the interrogation programs was a topic of discussion during Senate consideration of his nomination to be a judge on the U.S. Court of Appeals for the D.C. Circuit.

Illinois Democratic Sen. Richard J. Durbin, the current minority whip and a long time member of the Judiciary Committee, asked Kavanaugh back in 2006 what he knew about the involvement of William J. Haynes II, who had been a Bush nominee for a Fourth Circuit seat, in developing detainee policies.

“Senator, I did not — I was not involved and am not involved in the questions about the rules governing detention of combatants — and so I do not have the involvement with that,” Kavanaugh said back in May 2006.

Kavanaugh was confirmed. But the following year, news reports established that this answer was misleading at best, and lying to Congress at worst. NPR reported in 2007, Federal Judge Downplayed Role in Detainee Cases:

One of President Bush’s most controversial judicial appointees, Brett Kavanaugh, may have been less-than-forthright with Congress at a crucial hearing last year to confirm his appointment to a seat on the powerful federal appeals court in Washington, D.C.

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Alliance 4 Action’s endorsements for 2018 Arizona Primary

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from their website, www.alliance4action.org: “Who We Are We are an alliance of progressive individuals in southern Arizona working to ensure a caring and inclusive country. We will act together to protect and strengthen our values, human and civil rights. The alliance4action (a4a) is a citizens activist group that has become a powerful agent for creating … Read more