Welcome to DU!
The truly grassroots left-of-center political community where regular people, not algorithms, drive the discussions and set the standards.
Join the community:
Create a free account
Support DU (and get rid of ads!):
Become a Star Member
Latest Breaking News
General Discussion
The DU Lounge
All Forums
Issue Forums
Culture Forums
Alliance Forums
Region Forums
Support Forums
Help & Search
Trump's Supreme Court immunity brief leans on Kavanaugh's not remembering his own argument
Trump's Supreme Court immunity brief leans on Kavanaughs not remembering his own argument
Before he became a Supreme Court justice, Brett Kavanaugh argued against prosecuting sitting presidents. Donald Trump isnt a sitting president.
March 20, 2024, 5:13 PM EDT
By Jordan Rubin
In his immunity brief to the Supreme Court, Donald Trump name-checks two articles by Brett Kavanaugh from before Trump appointed him to the high court. The citations were obviously meant to support the former presidents broad immunity claim. But a closer reading beyond the quotes Trump's lawyers plucked from them shows that Kavanaugh's words actually support the notion that former presidents can be prosecuted.
The first Kavanaugh article cited in Trump's brief is titled Separation of Powers During the Forty-Fourth Presidency and Beyond. The former president quotes a line from it that says that a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President. Trumps lawyers then write, The same conclusion holds if that criminal investigation is waiting in the wings until he leaves office. But as NYU law professor Ryan Goodman observed, Kavanaugh said in the same article, 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.
The other Kavanaugh article cited in Trumps brief is titled The President and the Independent Counsel. The former president quotes a line from that one that says, Prosecution or nonprosecution of a President is, in short, inevitably and unavoidably a political act. Trumps lawyers then write that that observation applies to former Presidents as well and it applies most of all to a former President who is the leading candidate to replace the incumbent who is prosecuting him. Yet in that piece, too, Kavanaugh explicitly referred to the possibility of prosecuting presidents after they leave office, even specifying that statutes of limitations shouldnt prevent such prosecutions.
Kavanaugh, of course, is familiar with his own work he can at least review it ahead of the oral argument, set for April 25. It will be interesting to see whether he questions Trumps lawyer about the full context of those works. Likewise, well see whether special counsel Jack Smith quotes Kavanaugh more expansively in his responding brief due April 8.
Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorneys Office in Manhattan and is the author of Bizarro," a book about the secret war on synthetic drugs. Before he joined MSNBC, he was a legal reporter for Bloomberg Law.
Before he became a Supreme Court justice, Brett Kavanaugh argued against prosecuting sitting presidents. Donald Trump isnt a sitting president.
March 20, 2024, 5:13 PM EDT
By Jordan Rubin
In his immunity brief to the Supreme Court, Donald Trump name-checks two articles by Brett Kavanaugh from before Trump appointed him to the high court. The citations were obviously meant to support the former presidents broad immunity claim. But a closer reading beyond the quotes Trump's lawyers plucked from them shows that Kavanaugh's words actually support the notion that former presidents can be prosecuted.
The first Kavanaugh article cited in Trump's brief is titled Separation of Powers During the Forty-Fourth Presidency and Beyond. The former president quotes a line from it that says that a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President. Trumps lawyers then write, The same conclusion holds if that criminal investigation is waiting in the wings until he leaves office. But as NYU law professor Ryan Goodman observed, Kavanaugh said in the same article, 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.
The other Kavanaugh article cited in Trumps brief is titled The President and the Independent Counsel. The former president quotes a line from that one that says, Prosecution or nonprosecution of a President is, in short, inevitably and unavoidably a political act. Trumps lawyers then write that that observation applies to former Presidents as well and it applies most of all to a former President who is the leading candidate to replace the incumbent who is prosecuting him. Yet in that piece, too, Kavanaugh explicitly referred to the possibility of prosecuting presidents after they leave office, even specifying that statutes of limitations shouldnt prevent such prosecutions.
Kavanaugh, of course, is familiar with his own work he can at least review it ahead of the oral argument, set for April 25. It will be interesting to see whether he questions Trumps lawyer about the full context of those works. Likewise, well see whether special counsel Jack Smith quotes Kavanaugh more expansively in his responding brief due April 8.
Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorneys Office in Manhattan and is the author of Bizarro," a book about the secret war on synthetic drugs. Before he joined MSNBC, he was a legal reporter for Bloomberg Law.
InfoView thread info, including edit history
TrashPut this thread in your Trash Can (My DU » Trash Can)
BookmarkAdd this thread to your Bookmarks (My DU » Bookmarks)
1 replies, 646 views
ShareGet links to this post and/or share on social media
AlertAlert this post for a rule violation
PowersThere are no powers you can use on this post
EditCannot edit other people's posts
ReplyReply to this post
EditCannot edit other people's posts
Rec (9)
ReplyReply to this post
1 replies
= new reply since forum marked as read
Highlight:
NoneDon't highlight anything
5 newestHighlight 5 most recent replies
Trump's Supreme Court immunity brief leans on Kavanaugh's not remembering his own argument (Original Post)
mahatmakanejeeves
Mar 22
OP
tanyev
(42,559 posts)1. I think Kavanaugh can be counted on to selectively remember
his own argument only when the president is a Democrat.