MARK KARLIN, EDITOR OF BUZZFLASH AT TRUTHOUT
As The Washington Post pointed out in a June 29 article headlined, "Top Supreme Court prospect has argued presidents should not be distracted by investigations and lawsuits,"
U.S. Circuit Judge Brett M. Kavanaugh, a former clerk for Supreme Court Justice Anthony M. Kennedy who is viewed as one of the leading contenders to replace him, has argued that presidents should not be distracted by civil lawsuits, criminal investigations or even questions from a prosecutor or defense attorney while in office.
Kavanaugh had direct personal experience that informed his 2009 article for the Minnesota Law Review: He helped investigate President Bill Clinton as part of independent counsel Kenneth W. Starr's team and then served for five years as a close aide to President George W. Bush.
Having observed the weighty issues that can consume a president, Kavanaugh wrote, the nation's chief executive should be exempt from "time-consuming and distracting" lawsuits and investigations, which "would ill serve the public interest, especially in times of financial or national security crisis."
That is, of course, an outlook that is directly at odds with a Supreme Court perspective that set the context for the Paula Jones civil case against Bill Clinton to move forward, with Clinton as a defendant while he was president. It should be noted that the Supreme Court has not actually ruled on whether a president could be compelled to testify before a grand jury. Not yet anyway, but that could become an eventuality, considering Trump's legal thicket. No one is more acutely aware of that possibility than Trump.
Clinton voluntarily complied with Starr's initial subpoena (avoiding a Supreme Court face-off) in 1998, as CNN reported in a timeline of the Starr investigation that stretched over years,
July 25, 1998: Word emerges that Independent Counsel Ken Starr has served President Clinton with a subpoena that calls for his testimony before the Lewinsky grand jury next week. Negotiations are underway on the scope, timing and format of Clinton's testimony.
Clinton became the first president in office to testify before a grand jury.
Trump faces civil suits, investigations, charges by prosecutors, financial lawsuits and other legal challenges that would potentially require his involvement. Of course, the most significant of these is the Mueller investigation being conducted within the Department of Justice.
The Chicago Tribune ran an article on May 5 of this year that speculated on whether Trump, as president, could be compelled to testify to a grand jury or be subject to legal investigations in general:
The question was tested during the Watergate scandal in 1974, when justices held unanimously that a president could be compelled to comply with a subpoena for tapes and documents [but did not rule on a president testifying before a grand jury]. After the ruling, President Richard Nixon turned the materials over to prosecutors and then resigned.
Twenty-three years later, in allowing Paula Jones' sexual harassment suit to go forward against President Bill Clinton, Justice John Paul Stevens wrote: "We have made clear that in a criminal case the powerful interest in the 'fair administration of criminal justice' requires that the evidence be given under appropriate circumstances lest the 'very integrity of the judicial system' be eroded."
In the same case, Stevens also said that presidents have given testimony and produced documents often enough that "such interactions ... can scarcely be thought a novelty."
Starr was originally in charge of the Whitewater investigation -- which he took over from Robert Fiske -- that evolved into a legal inquiry involving the Paula Jones civil case against Clinton, which then sprawled into investigating Clinton for his relations with Monica Lewinsky. Eventually, Starr presented a voluminous report to the Republican House at the time that charged Clinton with two violations of the law: perjury and obstruction of justice. The GOP-controlled House then voted to impeach Clinton and send the process to the Senate for trial, where he was acquitted.
Needless to say, Trump hopes to avoid any investigations or court rulings compelling him to respond to legal actions -- and that is why Kavanaugh presents an insurance card to have on the Supreme Court.
Make no mistake about it, Brett Kavanaugh was in the thick of Starr's ruthless pursuit of Clinton, and his hands weren't clean. Politico explains that "the quantity of files potentially at issue in Kavanaugh's case could be unprecedented." The article references some particularly sensationalistic files:
The National Archives sent POLITICO a few documents Monday that were apparently released in response to inquiries about the apparent suicide of Clinton White House attorney Vince Foster in 1993, one of the matters Starr investigated.
One extremely graphic set of notes in Kavanaugh's files documents an interview with Park Police Sergeant John Rolla, who responded to the scene where Foster's body was found in Fort Marcy Park, along the George Washington Parkway.
"Arm flaccid. Blood moist on face. Not much rigor. Blood starting to congeal," the handwritten notes say. "When body rolled, still flaccid....May not be dead that long....Puddle of blood c/head about size of hands....Reached behind head & felt exit wound - felt mushy...."
A broader index of Kavanaugh's files shows still-unreleased folders containing memos on "perjury (obstruction/false statements)," shredding of records by Hillary Clinton's former law firm, impeachment, grand jury secrecy issues related to President Bill Clinton's interview about Foster's death, and a conspiracy theory at the time known as the INSLAW Affair.
Now, Kavanaugh, after participating in the legal stalking of Bill Clinton, has changed his mind about compelling the president of the United States to respond to the rule of law.
Yes, Kavanaugh's plethora of extremist right-wing positions make him an objectionable candidate to the nation's highest court. However, Kavanaugh's current position that Trump may most value has personal implications. Kavanaugh would, based on his writings, probably maintain on the Supreme Court that Trump is above the rule of law while serving as president. That's all Trump really needed to know to make Kavanaugh his nominee to replace Anthony Kennedy. Kavanaugh's position on giving a president a pass on being legally accountable, however, would make Trump Teflon-coated in regards to the law.