Tag Archives: prosecution

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.]

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