Dems say Kavanaugh eases off call for presidential immunity; White House disputes

Senate Democrats on Thursday pressed Judge Brett Kavanaugh on how he would view potential obstruction of justice or other possible criminal charges against President Trump if he were confirmed to the Supreme Court.

According to Democrats, Kavanaugh appeared to walk back some of his earlier claims that the president should be shielded from investigations while in office.

The White House disputed that assessment, saying the Democratic senators were mischaracterizing what Trump’s nominee said.

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“Democrats continue their desperate attempts to deliberately mislead the public about Judge Kavanaugh’s views,” said Raj Shah, a White House spokesman.

Democrats who interviewed Kavanaugh on Thursday said he softened his position on whether the president would have to comply with a subpoena or sit for a deposition. They also said the nominee refused to recuse himself from future legal matters involving Trump.

“I did pursue statements that he made about whether incumbent presidents should be subpoenaed, indicted, investigated, prosecuted, and we had a long talk about that,” said Sen. Dick Durbin (Ill.), a senior Democrat on the Judiciary Committee.

He said Kavanaugh appeared to walk back his claims made in a 2009 Minnesota Law Review article in which he argued that sitting presidents should not be distracted by criminal investigations or questions from prosecutors.

Durbin said that Kavanaugh explained in their meeting Thursday that he was merely suggesting that Congress should pass a law shielding sitting presidents from legal inquiries and wasn’t making any broad constitutional claim about their immunity from investigation.

“That is a big difference from what most people thought he was saying in that article,” Durbin said.

When asked if he thought Kavanaugh was walking back his earlier position, Durbin said it “sounds like it.”

Shah said Kavanaugh didn’t tell the lawmakers anything on Thursday that he hasn’t said before.

Kavanaugh’s defenders also argue that Durbin and other Democrats are twisting Kavanaugh’s words from the article to claim that he has argued for shielding the president from investigation.

They argue that Kavanaugh explicitly urged Congress in the piece to pass legislation to defer criminal charges, investigations and civil lawsuits against a president until after he or she leaves office. 

“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,” Kavanaugh wrote in the 2009 article. 

This makes it clear that Kavanaugh was not making any broad constitutional claim about whether a president should be subject to investigation, Republicans pressing for the nominee’s confirmation say.

Democrats, however, point to a footnote in the 2009 article to argue that he was making a broader case.

“Even in the absence of congressionally conferred immunity, a serious constitutional question exists regarding whether a president can be criminally indicted and tried while in office,” the footnote states.

Kavanaugh’s backers have pushed back by asserting that Kavanaugh has clearly stated in private meetings with senators that he still views the question of whether a president is subject to criminal investigation and indictment while in office as an unsettled legal issue.

The issue has taken on even more importance this week given the guilty plea by former Trump personal lawyer Michael Cohen, who told a judge that Trump directed him to pay hundreds of thousands of dollars in nondisclosure deals involving two women who alleged they had sex with Trump. The payments are in violation of campaign finance law.

Sen. Christopher Coons (D-Del.), another member of the Judiciary Committee, also pressed Kavanaugh on Thursday about how he would handle a criminal case against Trump if it came before the high court. 

“We had a vigorous conversation about both his views while he was staff on the Starr investigation about whether the president should have to be amenable to a subpoena for documents or testimony and then his subsequent public statements,” Coons said.

Coons said he agreed with Durbin that Kavanaugh appeared to be softening some of his past statements on whether presidents should be subject to criminal investigation and prosecution.

He said that Kavanaugh “tried to be very reassuring” during their private meeting about his views on whether presidents must comply with investigations.

“I am concerned about trying to square his actual decisional record, things he’s written in law review articles, things he’s said at conferences, with what he said to me,” he said.

Kavanaugh’s views on presidential privilege with regard to investigations have evolved since he served as an associate counsel for independent counsel Ken Starr in the 1990s. 

During Starr’s investigation into then-President Clinton, Kavanaugh proposed asking Clinton explicitly detailed questions about his sex acts with White House intern Monica Lewinsky. 

However, in his 2009 law review piece, Kavanaugh argued that it is “vital that the president be able to focus on his never-ending tasks with as few distractions as possible” and should be “excused from some of the burdens of ordinary citizenship.” 

Benjamin Wittes, the editor-in-chief of the Lawfare blog and a senior fellow in governance studies at the Brookings Institution, argued in a July article that the point of Kavanaugh’s 2009 law review piece “was in no sense to create an imperial presidency that was above the law.”

“His concern, rather, was that his experience with Bush had taught him that Starr’s disabling of the Clinton administration was not worth it,” he wrote. “This was about humility.”

Kavanaugh told Coons that he viewed the Supreme Court’s unanimous decision in United States v. Nixon, which ordered the president to turn over to a special prosecutor secret Oval Office tape recordings, as “a landmark case.”

But as with Roe v. Wade, the landmark decision that legalized a woman's right to an abortion, Kavanaugh declined to say whether he thought it was properly decided.

Kavanaugh, however, said “he now thinks that the president should not be able to interfere in a prosecution,” Coons said. 

“It was striking how differently I think he described those things,” Coons added.

The Delaware Democrat seconded Durbin in saying he heard Kavanaugh characterize his Minnesota Law Review article as “simply making policy proposals” and not claiming any special constitutional prerogative for the president.  

Coons said Kavanaugh made “roughly” the same argument to him and said he plans to press him further on the issue when the judge appears before his committee next month.

Sen. Cory Booker (D-N.J.), who also met with Kavanaugh on Thursday, said in a statement that the nominee “refused to commit to recusing himself from matters stemming from special counsel Mueller’s investigation.” 

Booker’s statement cited Kavanaugh’s past writings, which argue that “a sitting president should not be investigated or indicted,” as a reason to oppose his nomination.

Other Democrats have made similar arguments, such as Brian Fallon, the executive director of Demand Justice, a liberal advocacy group that opposes Kavanaugh.

Fallon tweeted on July 9 that “Kavanaugh … says sitting POTUS can’t be indicted.”

Kavanugh’s defenders noted that a Washington Post Fact Checker piece by Salvador Rizzo gave that claim “two pinocchios” on July 11.

The Washington Post, however, later updated its piece to note that Kavanaugh, participating on a Georgetown Law School panel in 1998, raised his hand when a moderator asked how many of the guests believe that as a matter of law a sitting president cannot be indicted while in office.

Sen. Tim Kaine (D-Va.), who met with Kavanaugh at the end of the day Thursday, also discussed the issue of presidential immunity with the nominee. 

Kaine said that Kavanaugh told him that he was making “a recommendation for legislative action” in his law review article and not putting forth a constitutional analysis.

This story was updated at 10:48 to add the White House's view of Kavanaught's meetings with senators on Thursday.