Kavanaugh's 2009 Review Could Signal Outcome in Trump's Immunity Debate

 April 30, 2024

The insights from a 15-year-old law review article by Justice Brett Kavanaugh may shed light on the Court's leanings.

Kavanaugh's writings suggest a nuanced view of presidential immunity, emphasizing a temporary postponement of legal actions against a sitting president rather than outright lifetime immunity.

According to Business Insider, this ruling concerns whether former President Donald Trump is entitled to immunity from criminal prosecution for actions taken during his time in office.

In his review, Kavanaugh argued for delaying prosecutions against sitting presidents until after their term, which provides crucial insight into his current judicial perspective. While not advocating for complete immunity, Kavanaugh highlighted the necessity for a president to serve without the burdens of litigation and criminal inquiries, suggesting a nuanced approach to presidential legal immunity.

Trump’s legal team has contended that only if a president is impeached and removed can he be held liable for actions undertaken while in office. This interpretation hinges significantly on Kavanaugh's writings, which do not strictly align with this argument, setting the stage for a complex judicial examination by the court.

Insights From Kavanaugh’s Legal Philosophy Reveal Much

Justice Kavanaugh's perspectives from over a decade ago resonate today as they hint at his potential influence on the ongoing Supreme Court deliberations. "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," Kavanaugh noted, emphasizing a deferred rather than a denied approach to presidential accountability.

Kavanaugh also recognized the constitutional mechanisms already in place, stating, "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." This view underscores a significant constitutional safeguard while clarifying that post-office prosecutions are not precluded.

Jonathan Entin, a retired constitutional law professor, offered insights on Kavanaugh's stance: "I don't read that as saying that Kavanaugh would agree with the Trump argument about you have to be impeached and removed before you can be prosecuted."

A Case With Far-Reaching Implications

This case tests the boundaries of presidential immunity and sets a precedent for how future presidents might be treated under the law. The conservative-majority court’s decision could offer Trump a partial victory by possibly returning the case to lower courts without a definitive resolution on sweeping immunity claims.

Legal experts like Entin anticipate a potential 6-3 decision favoring a nuanced resolution:

My sense is that we are probably going to get something that looks like a 6-3 decision, where the three Democratic appointees will dissent, and the six Republican appointees will say that this case has to go back to the lower courts to sort out what part of the indictment involves official actions — for which the President is immune from prosecution at any time — from things that are not, and that will kick the can down the road.

Regardless of the outcome, the Supreme Court's ruling will likely influence Trump's legal fate and the broader understanding of executive power and its limits. This decision could resonate through future administrations, defining the scope and limits of presidential immunity from criminal prosecution.

Conclusion: A Historic Judicial Decision Awaits

As the Supreme Court deliberates on this crucial issue, all eyes are on Justice Kavanaugh, whose past writings may heavily influence the decision. The court faces the task of balancing the need for presidential accountability with the practical aspects of executive functioning. The outcome of this case will likely define the extent of legal liabilities that U.S. presidents face after leaving office, potentially reshaping the landscape of American presidential jurisprudence.

About Robert Cunningham

With years of experience at the forefront of political commentary, Robert Cunningham brings a blend of sharp wit and deep insight to his analysis of American principles at the Capitalism Institute.

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