His argument was that the president these days has many weighty responsibilities — wars, economic crises, the threat of terrorist attacks — and shouldn’t be encumbered by criminal investigations or charges, or civil lawsuits, while in office.
“I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office,” Kavanaugh wrote in 2009, three years after Bush appointed him to the D.C. Circuit. “This is not something I necessarily thought in the 1980s or 1990s. Like many Americans at that time, I believed that the President should be required to shoulder the same obligations that we all carry. But in retrospect, that seems a mistake.”
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Kavanaugh makes other recommendations in the 2009 article, arguing that the president should have more authority over some independent agencies; that “the Senate should consider a rule ensuring that every judicial nominee receives a vote by the Senate within 180 days of being nominated by the President”; that the president should defer to Congress on some issues involving war, and that it’s worth considering a switch to a single, six-year term for presidents instead of a four-year term with the possibility of reelection.
But the top recommendation is for Congress to pass legislation that defers civil lawsuits and criminal charges and investigations until after the president leaves office. Kavanaugh wrote that this would require an extension of the statute of limitations, to ensure the president can face any pending legal proceedings after leaving office.
If the president did something “dastardly” during his term, there’s always impeachment, Kavanaugh added.
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In
an earlier article published in the Georgetown Law Journal in 1998, Kavanaugh wrote, “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.” In the same article, Kavanaugh wrote later on, “Whether the Constitution
allows indictment of a sitting President is debatable.” (Emphasis his.)
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[...]the Court in
Jones stated that Congress is free to provide a temporary deferral of civil suits while the President is in office. Congress may be wise to do so, just as it has done for certain members of the military. Deferral would allow the President to focus on the vital duties he was elected to perform.
“Congress should consider doing the same, moreover, with respect to criminal investigations and prosecutions of the President. In particular, Congress might consider a law exempting a President — while in office — from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel. Criminal investigations targeted at or revolving around a President are inevitably politicized by both their supporters and critics. As I have written before, ‘no Attorney General or special counsel will have the necessary credibility to avoid the inevitable charges that he is politically motivated — whether in favor of the President or against him, depending on the individual leading the investigation and its results.’ The indictment and trial of a sitting President, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.”