Noah Feldman writes:

Some Democrats and advocacy groups are saying President Donald Trump picked Judge Brett Kavanaugh as his second nominee to the U.S. Supreme Court because of Kavanaugh’s view that a president shouldn’t be indicted while in office. It’s important that not become the narrative of the Democrats’ opposition, because it can easily be refuted.

Properly understood, Kavanaugh’s expressed views actually support the opposite conclusion: that the president can be investigated and maybe even indicted unless Congress passes a law saying he can’t — which Congress has not done.

The key texts here Kavanaugh’s 2009 article in the Minnesota Law Review and his 1998 article in the Georgetown Law Journal.

In the 2009 piece, Kavanaugh, then newly appointed as a judge, acknowledged that in the 1990s, when he was working for independent counsel Ken Starr on the Bill Clinton investigation, he thought the president should be subject to criminal investigation while in office. But, he said, after working for George W. Bush in the White House, he had come to realize that the demands of the presidency required all the president’s attention. He even implied that the Starr investigation distracted Clinton from focusing on Osama bin Laden.

Now comes the tricky part. In 2009, Kavanaugh proposed that Congress might pass a law that would protect the president from investigation and indictment while in office. That’s the part that some Democrats are focusing on now — because Kavanaugh was saying that he thought it was a bad idea to go after the president.

But from a legal and constitutional perspective, Kavanaugh wasn’t saying that the courts should find that the president shouldn’t be investigated or indicted. To the contrary. He was saying that Congress should pass a law ensuring that result, because without it, the president was open to being investigated — and maybe even indicted.

Pause to take that in. If a law by Congress is necessary to fix the problem, it follows that without such a law, it is perfectly permissible under the Constitution to investigate a sitting president, as Starr did. [Continue reading…]