Judge Brett Kavanaugh on Independent Counsels (Part 1)

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.]

Congress should codify the current law of executive privilege available in criminal litigation to the effect that the President may not maintain any executive privilege, other than a national security privilege, in response to a grand jury or criminal trial subpoena sought by the United States. That rule strikes the appropriate balance between the need of federal law enforcement to conduct a thorough investigation and the need of the President for confidential discussions and advice. Codifying the law of executive privilege in this manner would expedite investigations of executive branch officials and ensure that such investigations are thorough and effective (at least, unless the courts were to reverse course and fashion a broader privilege as a matter of constitutional law).

Are Outside Federal Prosecutors Ever Necessary?

This supposed debate is, however, entirely illusory. Even the most severe critics of the current independent counsel statute concede that a prosecutor appointed from outside the Justice Department is necessary in some cases.

[T]he most famous critic of the independent counsel statute is Justice Antonin Scalia. His dissent in Morrison v. Olson, the decision upholding the constitutionality of the independent counsel statute, is largely an analysis of the Constitution’s separation of powers, including the requirements of the Appointments Clause and the Court’s jurisprudence regarding the removal power of the President. Notwithstanding the length and force of his dissent, Justice Scalia’s objection to the independent counsel statute was really quite simple: The President must be able to appoint and remove at will the independent counsel. If the President can select the independent counsel, and the President can remove the independent counsel at will, then Justice Scalia would have no objection.

It is not surprising that most critics of the current mandatory independent counsel statute accept the appointment of prosecutors from outside the Department of Justice in certain cases. This Nation possesses a deeply rooted tradition of appointing an outside prosecutor to run particular federal investigations of executive branch officials. Outside counsels are not a modern phenomenon. Between 1870 (the birth of the Justice Department) and 1973, presidential administrations appointed outside prosecutors on multiple occasions.

In the wake of Watergate, Congress enacted the Ethics in Government Act of 1978, 36 which required the appointment of an independent counsel in certain cases. Since then, Presidents and Attorneys General have sought the appointment of nearly twenty independent counsels under the statute but also continued to appoint special prosecutors outside the mandatory independent counsel mechanism in cases where that statute did not apply or had lapsed.

This extensive history demonstrates a clear “tradition” of “naming special prosecutors in certain, exceptional circumstances.”

American legal history has clearly demonstrated the necessity of a mechanism to appoint an outside prosecutor to conduct certain sensitive investigations of executive branch officials. In light of this consistent historical practice, it would take an extraordinarily compelling justification for Congress to turn its back on history and common sense by eliminating all mechanisms for appointing a prosecutor from outside the executive branch.

Such a case has not been made—nor has anyone really attempted to make it. And although there is no scientific answer to the question, it is rather untenable as a matter of common sense to contend that an outside prosecutor is never necessary —that an ordinary Justice Department prosecutor should always preside over a Justice Department investigation.

Note: That is until now Trump Says Appointment of Special Counsel Is ‘Totally Unconstitutional’, and Rudy Giuliani: Mueller Appointment Unconstitutional ‘On Its Face’. Trump wanted his Confederate Attorney General, Jefferson Beauregard Sessions III, to act as his consigliere to prevent or to impede any investigations, precisely the reason Kavanaugh argues why a special counsel is both necessary and proper.

Two centuries of experience inform us that the citizens (as represented by Congress and the media) will not accept such a procedure. Indeed, the fact that there have been so many outside prosecutors appointed throughout our history demonstrates their importance and necessity. And the further fact that even the strongest critics of the mandatory independent counsel statute concede that an outside prosecutor is necessary in some cases is telling evidence that some mechanism for appointment of an outside prosecutor is appropriate.

For these reasons, future debates should not focus on whether a special counsel statute is necessary, but rather on the more pertinent questions of by whom and under what conditions a special counsel should be appointed.

* * *

This article also proposes that Congress adopt two provisions not inextricably linked to special counsel investigations, but which have a substantial impact on them.

Presidential Immunity.

The President of the United States is not subject to indictment or information under the laws of the United States while he serves as President. The statute of limitations for any offense against the United States committed by the President shall be tolled while he serves as President.

Presidential Privileges.

In response to a federal grand jury or criminal trial subpoena sought by the United States, no court of the United States shall enforce or recognize a privilege claimed by the President in his official capacity, or by an Executive department or agency, except on the ground of national security, or as provided by a federal statute or rule that refers specifically to the privileges available to government officials or agencies in grand jury or criminal trial proceedings.

Note: Kavanaugh is arguing that Congress should enact these changes, which it never did. An inference, therefore, is that the President is in fact subject to indictment or information under the laws of the United States while he serves as President.

In fact, when Kavanaugh was working as senior counsel for Independent Counsel Ken Starr, he likely participated in requesting and reviewing the 56-page memo by Ronald Rotunda that is the most thorough government-commissioned analysis rejecting  the generally held view that presidents are immune from prosecution while in office.

“It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties,” the Starr office memo concludes. “In this country, no one, even President Clinton, is above the law.”

The New York Times reported that:

Other prosecutors working for Mr. Starr [likely including Kavanaugh] developed a draft indictment of Mr. Clinton, which The Times has also requested be made public. The National Archives has not processed that file to determine whether it is exempt from disclosure under grand-jury secrecy rules.

Both the Ronald Rotunda memo and the draft indictment of Bill Clinton should be produced to the Senate Judiciary Committee, for purposes of questioning Judge Kavanaugh on his role in developing these documents, and what his views are today.

Kavanaugh argues that “Congress can and should make it harder for future Presidents and presidential allies to attack the credibility of outside federal prosecutors. The best way to ensure as much insulation as possible, consistent with our constitutional structure, is to require presidential appointment and Senate confirmation.” He then explains his reasoning.

Kavanaugh concedes, “There no doubt will be some objections to this proposal. Some might argue that the President would not be inclined to appoint a truly independent and aggressive prosecutor because the allegations almost by definition would involve the activities of his close associates. But that is the wisdom of Senate confirmation. Indeed, the President would be wise to and likely would consult closely not only with his Attorney General and perhaps his White House Counsel, but also with Senate leaders, before even nominating a special counsel. Moreover, the media no doubt would aggressively probe the background and credentials of the individual selected by the President. The danger of the President appointing, and the Senate confirming, a crony or patsy as special counsel seems almost nonexistent.

This was in a world before Donald Trump.

Removal of the Special Counsel

Currently, an independent counsel can be removed for “good cause,” 51 a term undefined as a matter of law or practice. A special attorney appointed directly by the Attorney General can be removed at will.

As Justice Scalia intimated in [his dissent in] Morrison, at first blush it is somewhat difficult to understand why the President does not have the authority to dismiss any executive branch official at will.In any event,Justice Scalia also argued that a federal prosecutor should be removable at will for more practical reasons—that “the primary check against prosecutorial abuse is a political one” and that the independent counsel system thwarts this traditional check on a prosecutor’s actions.

Currently, a President can complain that an independent counsel is politically motivated while implying that he is powerless to do anything about it. This essentially gives the President and his surrogates freedom to publicly destroy the credibility of the independent counsel, and to cleverly avoid questions about why the President does not remove him. Congress should give back to the President the full power to act when he believes that a particular independent counsel is “out to get him.” Such a step not only would make the special counsel accountable, but it also would force the President and his surrogates to put up or shut up.

History clearly demonstrates that the President will pay an enormous political price if he does not have a persuasive justification for dismissing a special counsel. The deterrent to a President dismissing a special counsel thus would be the same as the deterrent to his firing the Attorney General—a practical and political (as opposed to legal) deterrent requiring the President to be able to explain his decision to Congress and the public.

In sum, the decision whether to appoint a special counsel should be at the President’s discretion as informed by the Congress and the media. That is as it should be—those audiences are the two primary representatives of the citizens, and the citizens are the persons who ultimately must be persuaded that an investigation resulting in a no-prosecution decision was thorough and credible.

Reports

As a general proposition, a public report is a mistake. It violates the basic norm of secrecy in criminal investigations, it adds time and expense to the investigation, and it often is perceived as a political act. It also misconceives the goals of the criminal process. A report discussing facts and evidence would make sense if the prosecutor’s goal was to establish publicly by a preponderance of the evidence what happened with respect to a particular event—as often is the case in congressional or inspector general investigations, or in civil litigation. That is not the goal of the independent counsel. Instead, an independent counsel is appointed only to investigate certain suspected violations of federal criminal law in order to determine whether criminal violations occurred, and to prosecute such violations if they did occur. That goal—to determine whether criminal violations occurred—is quite different from the goal of issuing public conclusions regarding a particular event.

On the other hand, as is reflected in § 595(c), there is a strong sense that evidence of the conduct of executive branch officers should not be concealed, at least not from Congress, which is constitutionally assigned the duty to determine their fitness for office. Thus, any information gathered with respect to executive branch officials that could reflect negatively on their fitness for office should be disclosed to Congress (not dissimilar to the manner in which FBI background information is disclosed when a nomination is pending). The statutory language proposed by this article thus attempts to incorporate the best of § 594(h) and § 595(c), to eliminate the worst, and to ensure that, on the one hand, miscreants not serve in the executive branch, and on the other, that personal privacy and reputation not be sacrificed unnecessarily and unwisely.

Investigation and Prosecution of the President

As will be explained, a serious question exists as to whether the Constitution permits the indictment of a sitting President. Regardless how the Supreme Court ultimately would rule on that question, however, Congress should enact legislation clarifying the proper procedure to follow when there are serious allegations of wrongdoing against the President. In particular, Congress should clarify that a sitting President is not subject to criminal indictment while in office. Such legislation not only would go a long way towards disentangling the appearance of politics from special counsel investigations, it also would greatly expedite those investigations where the President otherwise would be one of the subjects of the investigation.

If Kavanaugh serves on the Court, he is likely to be called upon to decide this very issue. As noted above, the 56-page memo by Ronald Rotunda for Independent Counsel Ken Starr found that “It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties.” See, Can the President Be Indicted? A Long-Hidden Legal Memo Says Yes.

Kavanaugh, as senior counsel, almost certainly participated in the development of the draft indictment of Bill Clinton.

In 1974, the Watergate special counsel, Leon Jaworski, had also received a memo from his staff saying he could indict  president Richard M. Nixon, while he was in office, and later made that case in a court brief.

Presidents have been subpoenaed before — Thomas Jefferson for documents, Richard Nixon for tapes, and Bill Clinton for testimony — but not criminally indicted. When presidents have been subpoenaed, here’s what they’ve done:

The Supreme Court has never directly addressed whether a president can refuse to cooperate in a criminal investigation potentially involving his own conduct. That’s because no president has ever fought such a request.

The indictment of a President would be a disabling experience for the government as a whole and for the President’s political party—and thus also for the political, economic, social, diplomatic, and military causes that the President champions. The dramatic consequences invite, indeed, beg, an all-out attack by the innumerable actors who would be adversely affected by such a result.

The Constitution of the United States contemplated, at least by implication, what modern practice has shown to be the inevitable result. The Framers thus appeared to anticipate that a President who commits serious wrongdoing should be impeached by the House and removed from office by the Senate—and then prosecuted thereafter. The Constitution itself seems to dictate, in addition, that congressional investigation must take place in lieu of criminal investigation when the President is the subject of investigation, and that criminal prosecution can occur only after the President has left office.

Watergate Special Prosecutor Jaworski concluded, for example, that “the Supreme Court, if presented with the question, would not uphold an indictment of the President for the crimes of which he would be accused.” Accordingly, he thought it would be irresponsible conduct to recommend that the grand jury return an indictment against the President.

The Supreme Court’s decision in Clinton v. Jones indicated that the President is subject to private lawsuits to remedy individuals harmed. But the Court’s decision does not apply to criminal proceedings against the President, which seek to enforce public, not private, rights. The Court thus repeatedly referred in its opinion to “private” actions against thePresident.

When nonfrivolous allegations or evidence of wrongdoing by the President is received by a prosecutor, that evidence should be forwarded to the House of Representatives. If Congress declines to investigate, or to impeach and remove the President, there can be no criminal prosecution of the President at least until his term in office expires. (Most criminal investigations include multiple potential defendants, so the criminal investigation as a whole generally might proceed, depending on the circumstances.) As an extreme hypothetical, some might ask what would happen if the President murdered someone [e.g., Trump: “I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose voters.”] or committed some other dastardly deed. In such a case, we can expect that the President would be quickly impeached, tried, and removed; the criminal process then would commence against the President. There is simply no danger that such crimes would go criminally unpunished; the only question is when they can be punished.

Can he really be so certain when an obvious autocrat who leads an authoritarian political party controls all three branches of government, and controls an expansive propaganda media empire? It happens in other countries, it an happen here.

Kavanaugh finishes with a lengthy exposition on privileges and attorney work product, which I will mercifully skip here.

Kavanaugh concludes that “Outside federal prosecutors are here to stay.”

Kavanaugh’s recommendations were ignored and were never enacted. As a justice on the Supreme Court, his views cannot be ignored, and he would have the opportunity to impose his views.

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