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Brett Kavanaugh Needs to Check His Executive Privilege

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Brett Kavanaugh Needs to Check His Executive Privilege

Despite what his defenders say, Its not true that the nominee is agnostic about the constitutionality of prosecuting a sitting president.

Credit: Wikimedia Commons/Public Domain

If you could grow a judge in a vat and design every moment of their life to appeal perfectly to the Republican establishment, ThinkProgresss Ian Millhiserlaments, the man who would emerge fully-formed from that vat would be Brett Kavanaugh. True enough, President Donald Trumps pick to replace Justice Kennedy hasshown up fornearly every conservative legal scrap of the last 20 years, from the Clinton impeachmentheto the Florida recount fight to theWhite House Counsels officeunder George W. Bush.

Still, if GOP bioengineershad the technology, surely theyd have hatched a nominee with a different gender and complexionand a much shorter paper trail.

It seems Kavanaugh never got the post-Bork memo explaining that, if you plan to go before the Senate Judiciary Committee someday, youre not allowed to publish anything interesting. Kavanaugh has written extensively on his beliefs that a sitting president shouldnt be subject to criminal investigations or civil lawsuits,chargesSenator Corey Booker, and this all but assures he would work to shield Trump from the Mueller investigation. Congresswoman Carolyn Maloney put itmore brusquely: Trump has nominated a get-out-of-jail free card.

At issue here are two essays written a decade apart. Theyre heavier on policy proposals than constitutional analysis, so they dont say exactly how a Justice Kavanaugh would rule in any given case. What they do show is that the further he got from his service in Ken Starrs office, the more Kavanaugh wanted the president cloaked in special immunities from civil suit and criminal investigation.

Thefirst article,published in theGeorgetown Law Journalin 1998, calls for a legislative redesign of the Independent Counsel law then in effect. Among other changes, Kavanaugh urged Congress to hold criminal prosecutions of the president until after he leaves office. At the same time, he writes, Congress should bar the president from asserting any executive privilege, other than a national security privilege, in response to a grand jury or criminal trial subpoena sought by the United States.

The presidential privileges Kavanaugh would have taken away are arguably more significant than the one hed cede. No sitting president, includingRichard Nixon, has ever been indicted, but presidents haverepeatedly abusedexecutive privilege to shield themselves and their associates from scrutiny. By restricting its use, Kavanaugh aimed to expedite investigations of executive branch officials and ensure that such investigations are thorough and effective.

By 2009, writing in theMinnesota Law Review,Kavanaugh was aiming at something quite different. We exalt and revere the presidency in this countryspeak for yourself, buddyyet even so, I think we grossly underestimate how difficult the job is. Five and a half years in the Bush administration had convinced him that the President should be excused from some of the burdens of ordinary citizenship while serving in office.

One of those burdens is civil litigation; accordingly, Kavanaugh calls on Congress to provide the president with temporary immunity from personal civil suits. The Supreme Court may well have been entirely correct when it held, inClinton v. Jones(1997), that the Constitution doesnt mandate such a privilege, Kavanaugh says, but statutory deferral is within Congresss power and would allow the president to focus on the vital duties he was elected to perform. Moreover, Kavanaugh argues, Congress should consider a law exempting a Presidentwhile in officefrom criminal prosecution andinvestigation, includingfrom questioning by criminal prosecutors or defense counsel (emphasis added).

Its a dramatic change of heart: a decade earlier, Kavanaugh had been Ken Starrs most militant staffer when it came to interrogating the president. I am strongly opposed to giving the President any break,he wrotetwo days before Clintons grand jury testimony. He urged Starr to grill the president on where, besides the blue dress, Clinton might have left his mark: If Monica Lewinsky says that you masturbated into a trashcan in your secretarys office, would she [be] lying? The idea of going easy on him at the questioning was abhorrent, the young lawyer declared.

The Kavanaugh of the late 1990s wanted the president stripped of all but core claims of executive privilege. The Kavanaugh of 10 years later wants him immunized from questioning altogether. As the hipsters say, I prefer his early stuff.

Kavanaugh 2.0s policy proposals are mostly solutions in search of a problem. In 2009, when he proposed shielding sitting presidents from investigation, the independent counsel law was long dead, Congress havingallowed it to expire10 years before. The special counsel regulations Robert Mueller now operates under had been invokedonly once, in 1999, to probe law enforcement conduct during the Waco raid.

Nor had personal lawsuits ever distracted any president besides Bill Clinton. As the Court noted inClinton v.Jones, in the more than 200-year history of the Republic, only three sitting presidents have been subjected to suits for their private actions. Despite claims that the Courts decision in that case would open the floodgates to legal harassment, neither Bush nor Obama faced personal lawsuits while in office.

True, the multiple civil actions lodged against Donald Trumpdefamation,sexual misconduct, runninga fraudulent charity, and so forthmay end up cutting into his executive time. But then instead of crafting new immunities for the president, maybe American voters should think twice before electing somebody with Clinton- or Trump-style baggage.

If hes confirmed, Justice Kavanaugh may well get a chance to rule on whether the presidentcan be sued in state courtan issue theJonescase left openorforced to testifyin the Mueller investigation. Do his policy views really tell usnothingabout how hed apply the law in those cases?

Perhaps Kavanaugh is the all-too-rare jurist who keeps his policy views hermetically sealed off from his interpretive faculties. But the public record also tells us a fair amount about hislegalviews on presidential privileges. Despite what Kavanaughs defendershave suggested, its not true that the nominee is agnostic about the constitutionality of prosecuting a sitting president. In the 2009 article, he writes that the Constitution itself seems to dictatethat criminal prosecution can occur only after the President has left office bystipulating thatthe Party convicted in an impeachment trial shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Its a weak argument: that language applies to all impeachable officers, not just the president, and its never been held to bar theprosecution of federal judgesor evenvice presidentsprior to impeachment.

Its unlikely that Robert Mueller will actually indict Trump, but hes threatened to issue a subpoenacompelling his testimony. And as Lawfares Ryan Goodman notes, the two constitutional issuesa presidents immunity from indictment and a presidents immunity from a subpoenaare intertwined. Thats how the Trump legal team sees it as well:according to Rudy Giuliani, Its quite clear you can neither indict or otherwise use the criminal process against the (sitting) president, which includes the threatened subpoena: The president should not be distracted.

A genuine originalist wouldhave a hard timeconjuring broad presidential immunities from the constitutional text. The Framers knew how to draft special protections for public officials, as they did for members of Congress in theSpeech or Debate Clause. But asJames Wilson toldthe Pennsylvania Ratifying Convention in 1787: the executive power is better to be trusted when it has no screen; here not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.

On the available evidence, Judge Kavanaugh appears uncomfortable with that arrangement. Presidential power skeptics should be equally uneasy about his nomination.

Gene Healyis a vice president at the Cato Institute and author ofThe Cult of the Presidency.

Nice to see James Wilson quoted. He gets rather shabby treatment in the musical 1776, a show I otherwise quite enjoy.

But then instead of crafting new immunities for the president, maybe American voters should think twice before electing somebody with Clinton- or Trump-style baggage.

No. It should not be this easy to muckrake a president duly elected. Your end here is to bad mouth the electorate, when in fact the fault lies in the shallow elitist sensibilities of the merry-go-round cliques determine from a select fraternity and sorority of the privileged.

And when our would be philosopher kings, queens, princesses, and princes are ca;;ed to account for their poor decisions its not they at fault but the voter.

All the more reason to start voting for anyone other than those from DCs climate.

We exalt and revere the presidency in this country

REVERE the presidency eh? The devout Judge K should re-read his bible, specifically Matthew 22:21. The author might disagree

Im interested in whether Kavanaugh, as a prominent Catholic layman, did anything to stop the Catholic episcopate from concealing child sex abuse by Catholic clergy.

There are too many Catholics on the court as it is, and the last thing we need on the Supreme Court of the US is the kind of person whose views on executive privilege in the person of the President are matched by deference to the enablers of the disgusting crimes being exposed in his church.

judge vs bishop seems to be onto something. the executives of Vatican, LLP enjoyed the same privilege, give or take a sacrificial lamb. let me make it simple for all the Christians and evangelicals Kavanaugh is a Legislator in Judges clothing, but thats what they want.

Mr. Healys article presents contemnible spin pretending to be journalism.

I lack time, now, to put a thorough deconstruction. (My time devotes itself to perfecting a complex appeal of a habeas corpus denial.)

But I shall tender a couple examples of the twists of Mr. Healys spin.

(1) When Judge Kavanaugh, then not a judge, assisted Ken Starr in the latters investigation of Bill Clinton, Judge Kavanaugh was merely dong his job, doing did what Starr ordered according to Kenn Starrs agenda. We cannot know whether, at that time, Kavanaugh would have argued that the President ought to be temporarily immune from civil or criminal prosecution or from complying with subpoenas or being subjected to law-enforcement interrogation or depositions.

So, one cannot argue that Judge Kavanaugh was behaving inconsistently in writing the Georgetown Law Journal or Minnesota Law Review articles that proposed Congressional legislation that would relieve, TEMPORARILY, a sitting President form certain liabilities or responsibilities associated with civil or criminal litigation or investigation.

(2) In the sum of those law review articles, Judge Kavanaugh SUGGESTED:

(a) that federal statute law provide sitting presidents with a TEMPORARY deferral of civil suits and of criminal prosecutions and investigations

(b) that Congress consider the possible benefits of a single, six-year presidential term

The vitally critical terms were (1) TEMPORARY (temporary deferral of civil suits and of criminal prosecutions and investigations) and (2) SINGLE (single, six-year presidential term)

Judge Kavanaughs suggestions would NOT put Presidents above the law, but curtail, TEMPORARILY, litigational or law-enforcement-related intrusion into the affairs of the Office of a sitting President and, per limiting Presidencies to one 6-year term, actually REDUCE the magnitude of the effects of any one Presidents policies and actions (including litigable, prosecutable, or impeachable policies or actions) formed or undertaken while or before that President was inaugurated.

Also, Judge Kavanaugh acknowledged that even his suggested temporary Presidential immunity ought not be inviolable, and that in some instances, a grave justice-concern would necessitate suspension of even that temporary immunity: If justice cannot be delayed until the Presidents tenure ends, he writes, Congress must intercede by exercising its power of impeachment, Denate trial, and removal.

Also, more than most federal judges, Judge Kavanaugh has sought to hold the Executive in check. See, E.G.,

Given how badly our recent presidents have abused their power and the public trust, I think we need a constitutional amendment creating an office of presidential investigator, with powers similar to those of a special prosecutor. Every president should be subject to automatic, continuing, relentless investigation from day 1 until they leave office, and beyond.

excuse me, what they want when their guy is POTUS.

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Under certain conditions, more fully described on thePrivacy Shield website, you may invoke binding arbitration when other dispute resolution procedures have been exhausted.

In compliance with the Privacy Shield Principles, Citrix commits to resolve complaints about our collection or use of your personal information. If you have questions or complaints regarding our Privacy Policy or practices, please contact ushere.

EU and Swiss individuals with inquiries or complaints regarding our Privacy Shield policy should first contact Citrixhere. If you have an unresolved compliant that has not been addressed to your satisfaction, please contact or visit U.S.-based alternative dispute resolution provider) for more information or to file a complaint. The services are provided at no cost to you.

Citrix has further committed to cooperate with the panel established by the EU data protection authorities (DPAs) and the Swiss Federal Data Protection and Information Commissioner (FDPIC) with regard to unresolved Privacy Shield complaints concerning human resources data transferred from the EU and Switzerland in the context of the employment relationship.

We offer you certain choices in connection with the personal information we obtain about you, such as how we use the information and how we communicate with you. To update your preferences, limit the communications you receive from us or submit a request, please contact us as specified in theHow to Contact Ussection of this Privacy Policy. You can also unsubscribe from our mailing lists by following the Unsubscribe link in our emails.

To the extent provided by the law of your jurisdiction, you may request access to the personal information we maintain about you or request that we correct, update, amend or delete your information, or that we restrict the processing of such information by contacting us as indicated below or by accessingMyAccount. To help protect your privacy and maintain security, we may take steps to verify your identity before granting you access to the information. To the extent permitted by applicable law, a charge may apply before we provide you with a copy of any of your personal information that we maintain. Depending on your location, you may have the right to file a complaint with a government regulator if you are not satisfied with our response.

We support the Self-Regulatory Principles for Online Behavioral Advertising (Principles) of theDigital Advertising Alliancein the U.S., theDigital Advertising Alliance of Canada, and theEuropean Digital Advertising Alliancein the EU. If you live in the United States, Canada, or the European Union, you can visitAd ChoicesAd Choices CanadaorYour Online Choicesto find a convenient place to indicate your preferences, including the option to make one universal opt-out of interest-based advertising with participating entities. These websites also provide detailed information about interest-based advertising and tips for managing your privacy online and in applications. Opting out of interest-based advertising does not mean you will no longer see advertisements from us or on the Online Channels; rather, opting out means that the online ads that you do see will not be based on your interests. When you opt-out of receiving interest-based advertisements through the links above, cookies and other technologies on the Online Channels may still collect information about your use of the Online Channels, including for analytics, fraud prevention and any other purpose permitted under the Self- Regulatory Principles.

When you use our Online Channels, both we and certain third parties (such as our advertising networks, digital advertising partners and social media platforms) may collect personal information about your online activities, over time and across third-party websites. Certain web browsers allow you to instruct your browser to send Do Not Track (DNT) signals to websites you visit, informing those sites that you do not want your online activities to be tracked. While our Online Channels are not designed to respond to do not track signals received from web browsers, you can manage your cookie preferences and the choices you can make in connection with the personal information we collect about you through automated means by visiting ourCookie Consent Tool.

Where provided by law, you may withdraw any consent you previously provided to us or object at any time on legitimate grounds to the processing of your personal information, and we will apply your preferences going forward. This will not affect the lawfulness of our use of your information based on your consent before its withdrawal.

We maintain administrative, technical and physical safeguards, consistent with legal requirements where the personal information was obtained, designed to protect against unlawful or unauthorized destruction, loss, alteration, use or disclosure of, or access to, the personal information provided to us through the Channels.

To the extent permitted by applicable law, we typically retain personal information we obtain about you for as long as it is needed (1) for the purposes for which we obtained it, in accordance with the terms of this Privacy Policy, which generally means that we will keep your personal information for the duration of our relationship or as long as you keep your account open with us; or (2) to take into account applicable statute of limitation periods and comply with applicable laws, resolve disputes and enforce our agreements. As described in the Your Rights and Choices section above, to the extent provided by the law of your jurisdiction, you may request that we delete your information or restrict the processing of such information by contacting us as indicated below.

Subject to certain limits under California law, California residents may ask us to provide them with (1) a list of certain categories of personal information we have disclosed to third parties for their direct marketing purposes during the immediately preceding calendar year and (2) the identity of those third parties. To obtain this information, please send an email ith California Shine the Light Privacy Request in the subject line and in the body of your message.

The Online Channels are designed for a general audience and are not directed to children under the age of 13. We do not knowingly collect or solicit personal information from children under the age of 13 through the Online Channels. If we become aware that we have collected personal information from a child under the age of 13, we will promptly delete the information from our records. If you believe that a child under the age of 13 may have provided us with personal information, please contact us as specified in theHow To Contact Ussection of this Privacy Policy.

This Privacy Policy may be updated periodically and without prior notice to you to reflect changes in our information practices. We will indicate at the top of this Privacy Policy when it was most recently updated. We encourage you to periodically review this Privacy Policy for the latest information on our privacy practices.

If you have any questions or comments about this Privacy Policy or if you would like us to update information we have about you or your preferences, please contact ushereor by email r write to us at:

Attn: Chief Privacy & Digital Risk Officer / Data Protection Officer

XenApp, XenDesktop, XenMobile and XenServer are part of the Xen® family of products.

Providing Immigration Benefits Information

Official website of the Department of Homeland Security

Providing Immigration Benefits & Information

Immigration Options for Victims of Crimes

Providing Immigration Benefits & Information

Providing Immigration Benefits & Information

Immigration Options for Victims of Crimes

Providing Immigration Benefits & Information

The Department of Homeland Security, through U.S. Citizenship and Immigration Services (USCIS), provides immigration benefits to people who are entitled to stay in the U.S. on a temporary or permanent basis. These benefits include

granting of U.S. citizenship to those who are eligible to naturalize,

authorizing individuals to reside in the U.S. on a permanent basis, and

providing aliens with the eligibility to work in the United States

Electronic Filing for Immigration Benefits. Provides ability to file some of USCIS most popular forms at any time.

Immigration Forms and Fees. Forms needed to apply for immigration benefits, and the most recent fees.

Immigration Services Scams. Immigration services scams are a pervasive problem that can affect anyone applying for an immigration benefit with USCIS. Learn the facts and protect yourself and your family from this type of unlawful activity.

INFOPASS (USCIS). A free and convenient Internet-based system that allows the public to make an appointment to speak with an Immigration Information Officer.

Iraqi Refugee Processing(USCIS). Through the U.S. Refugee Admissions Program (USRAP) inter-agency effort, the Department of Homeland Security and Department of State are working cooperatively to increase the number of Iraqi refugees admitted to the United States.

Lawful Permanent Residency. Information for people who wish to come to the U.S. to live on a permanent basis and aliens who already live in the United States. Information regarding Green Cards.

Redesigned Naturalization Exam. New questions focus on the concepts of democracy and the rights and responsibilities of citizenship.

Temporary Visitors. Including business travelers to the U.S., students who come to the U.S., and recreational visitors to the U.S.

Immigration Options for Victims of Crimes

Contact theCIS Ombudsmanif you are having issues with your pending application or petition filed with USCIS.

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Providing Immigration Benefits & Information

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Immigration Options for Vicms of Crimes

Official website of the Department of Homeland Security

Providing Immigration Benefits & Information

Immigration Options for Victims of Crimes

Immigration Options for Victims of Crimes

Providing Immigration Benefits & Information

Immigration Options for Victims of Crimes

Immigration Options for Victims of Crimes

Many immigrants are fearful of admitting that they have been a victim of a crime in part because they believe they will be removed (deported) from the United States if they report the crime. U.S. law provides several protections for legal and undocumented immigrants who have been victims of a crime. There are specific protections for victims of domestic violence, victims of certain crimes, andvictims of human trafficking.

Immigration Options for Victims of Crimes

Opciones de Inmigracin para las Vctimas de Delitos

[Chinese]

[Russian]

Some immigrants may be afraid to report acts of domestic violence to the police or to seek other forms of assistance. Such fear causes many immigrants to remain in abusive relationships.

Victims of domestic violence who are the child, parent, or current/former spouse of a United States citizen or a permanent resident (green card holder) and are abused by the citizen or permanent resident may be eligible to apply for a green card themselves without needing the abuser to file for immigration benefits on their behalf. This provision of the law was created under the VAWA.

Have or had a qualifying relationship with the abuser spouse, or, are the parent or child of the abuser,

Have been victims of battery or extreme cruelty.

VAWA provisions apply equally to men and women. Victims of domestic violence, whether a spouse, child, or parent of the abuser, may self-petition by filingForm I, Petition for Widow(er)s, Amerasians, and Special Immigrants.

U nonimmigrant status (or U visa) offers immigration protection for victims and is also a tool for law enforcement. To obtain U status, the victim must obtain a certification from law enforcement, however, law enforcement officials should note that providing a certification does not grant a benefitonly the U.S. Citizenship and Immigration Services (USCIS) has the authority to grant or deny this benefit.

Victims are not required to be in legal immigration status, but they must:

Be a victim of qualifying criminal activity and have suffered substantial physical or mental abuse as a result of the crime,

Possess credible and reliable information about the qualifying criminal activity,

Be, have been, or are likely to be helpful to the investigation and/or prosecution of that qualifying criminal activity, and

Be a victim of criminal activity that violated a U.S. law.

Victims of the following crimes may be eligible for a U nonimmigrant visa:

To apply for U nonimmigrant status, the victim must fileForm I-918, Petition for U Nonimmigrant Status. Law enforcement official must certify Form I-918, Supplement B. Qualifying family members may also be eligible to apply for benefits.

Trafficking in personsalso known as human traffickingis a form of modern-day slavery. Traffickers prey on many types of people, often including individuals who are poor, unemployed, underemployed, or who lack the safety and protection of strong social networks. Victims are often lured under the false pretenses of good jobs and better lives, and then forced to work under brutal and inhumane conditions. Many believe that human trafficking is a problem that only occurs in other countriesbut human trafficking also happens in the United States.

The T nonimmigrant status (or T visa) provides immigration protection to victims of severe forms of trafficking in persons who assist law enforcement in the investigation and prosecution of human trafficking cases.

Victims are not required to be in legal immigration status, but they must:

Be a victim of a severe form of trafficking in persons,

Be physically present in the United States on account of the trafficking,

Comply with any reasonable requests for assistance in the investigation or prosecution (or be under the age of 18), and

Suffer extreme hardship involving unusual and severe harm if removed from the United States.

To apply for a T nonimmigrant status, applicants must file Form I-914, Application for T Nonimmigrant Status. Qualifying family members may also be eligible to apply for benefits.

Many immigrants are fearful of admitting that they have been a victim of a crime in part because they believe they will be removed (deported) from the United States if they report the crime. Officials such as police officers, healthcare providers, judges, and prosecutors are often the first to see the signs of violence and are therefore in a unique position to provide information and assistance to those who have been victims. This brochure is designed to assist front-line workers in this endeavor.

U.S. law provides several protections for legal and undocumented immigrants who have been victims of a crime. Often victims are unaware of such protections, thus frontline workers serve as a critical link for immigrant victims. There are specific protections for victims of domestic violence, victims of certain crimes, and victims of human trafficking.

All agencies within the Department of Homeland Security, including USCIS, are legally prohibited from disclosing that a victim has applied for VAWA, T, or U immigration benefits.

For law enforcement officials and representatives of record:

Wellmark Blue Cross and Blue Shield

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Get ready for retirement with a Medicare supplement plan from Wellmark.

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University of Iowa Hospital and Clinics received maternity care designation

Wellmarks 3-Point Play program awards nearly $90,000

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Making a difference in Iowa and South Dakota

Iowa organizations received more than $1.8 million from The Wellmark Foundation

Accessibility and Nondiscrimination

©Wellmark Inc. All rights reserved. Wellmark Blue Cross and Blue Shield of Iowa, Wellmark Health Plan of Iowa, Inc., Wellmark Blue Cross and Blue Shield of South Dakota, Wellmark Synergy Health, Inc., and Wellmark Value Health Plan, Inc. are independent licensees of the Blue Cross and Blue Shield Association.Privacy & Legal

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