From article by Kavanaugh in the Minnesota Law Review
Some are saying this is why he was chosen over others.
My goal in this forum is far
more modest: to identify problems worthy of additional attention,
sketch out some possible solutions, and call for further
discussion.
I. PROVIDE SITTING PRESIDENTS WITH A TEMPORARY
DEFERRAL OF CIVIL SUITS AND OF CRIMINAL
PROSECUTIONS AND INVESTIGATIONS
First, my chief takeaway from working in the White House
for five-and-a-half years—and particularly from my nearly
three years of work as Staff Secretary, when I was fortunate to
travel the country and the world with President Bush—is that
the job of President is far more difficult than any other civilian
position in government. It frankly makes being a member of
Congress or the judiciary look rather easy by comparison. The
decisions a President must make are hard and often life-ordeath,
the pressure is relentless, the problems arise from all directions,
the criticism is unremitting and personal, and at the
end of the day only one person is responsible. There are not
eight other colleagues (as there are on the Supreme Court), or
ninety-nine other colleagues (as there are in the Senate), or 434
other colleagues (as there are in the House). There is no review
panel for presidential decisions and few opportunities for doovers.
The President alone makes the most important decisions.
It is true that presidents carve out occasional free time to
exercise or read or attend social events. But don’t be fooled. The
job and the pressure never stop. We exalt and revere the presidency
in this country—yet even so, I think we grossly underestimate how difficult the job is.
At the end of the Clinton presidency,
John Harris wrote an excellent book about President
Clinton entitled The Survivor.23 I have come to think that the
book’s title is an accurate description for all presidents in the
modern era.
Having seen first-hand how complex and difficult that job
is, I believe it vital that the President be able to focus on his
never-ending tasks with as few distractions as possible. The
country wants the President to be “one of us” who bears the
same responsibilities of citizenship that all share. But I believe
that the President should be excused from some of the burdens
of ordinary citizenship while serving in office.
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.
Looking back to the late 1990s, for example, the nation certainly
would have been better off if President Clinton could have
focused on Osama bin Laden24 without being distracted by the
Paula Jones sexual harassment case and its criminalinvestigation
offshoots.25 To be sure, one can correctly say that
President Clinton brought that ordeal on himself, by his answers
during his deposition in the Jones case if nothing else.
And my point here is not to say that the relevant actors—the
Supreme Court in Jones, Judge Susan Webber Wright, and Independent
Counsel Kenneth Starr—did anything other than
their proper duty under the law as it then existed.26 But the
law as it existed was itself the problem, particularly the extent
to which it allowed civil suits against presidents to proceed
while the President is in office.
With that in mind, it would be appropriate for Congress to
enact a statute providing that any personal civil suits against
presidents, like certain members of the military, be deferred
while the President is in office. The result the Supreme Court
reached in Clinton v. Jones27—that presidents are not constitutionally
entitled to deferral of civil suits—may well have been
entirely correct; that is beyond the scope of this inquiry. But
the Court in Jones stated that Congress is free to provide a
temporary deferral of civil suits while the President is in office.28
Congress may be wise to do so, just as it has done for certain
members of the military.29 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.30
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.”31 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.
Even the lesser burdens of a criminal investigation—
including preparing for questioning by criminal investigators—
are time-consuming and distracting. Like civil suits, criminal
investigations take the President’s focus away from his or her
responsibilities to the people. And a President who is concerned
about an ongoing criminal investigation is almost inevitably
going to do a worse job as President.
One might raise at least two important critiques of these
ideas. The first is that no one is above the law in our system of
government. I strongly agree with that principle. But it is not
ultimately a persuasive criticism of these suggestions. 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.32
A second possible concern is that the country needs a check
against a bad-behaving or law-breaking President. But the
Constitution already provides that check. If the President does
something dastardly, the impeachment process is available.33
No single prosecutor, judge, or jury should be able to accomplish
what the Constitution assigns to the Congress.34 Moreover,
an impeached and removed President is still subject to
criminal prosecution afterwards. In short, the Constitution establishes
a clear mechanism to deter executive malfeasance; we
should not burden a sitting President with civil suits, criminal
investigations, or criminal prosecutions.35 The President’s job is
difficult enough as is. And the country loses when the President’s
focus is distracted by the burdens of civil litigation or
criminal investigation and possible prosecution.36
If you want to read the whole thing
https://t.co/rDHJs5RiUY
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