Brett Kavanaugh Thinks that Jack Smith Is as Crazy as Ken Starr Was
There was a subtle moment in yesterday’s SCOTUS hearing on Trump’s absolute immunity claim.
Former Whitewater prosecutor Brett Kavanaugh asked Michael Dreeben whether DOJ had weighed in on this prosecution.
Did the President weigh in? he asked. The Attorney General?
JUSTICE KAVANAUGH: As you’ve indicated, this case has huge implications for the presidency, for the future of the presidency, for the future of the country, in my view. You’ve referred to the Department a few times as having supported the position. Who in the Department? Is it the president, the attorney general?
MR. DREEBEN: The Solicitor General of the United States. Part of the way in which the special counsel functions is as a component of the Department of Justice.
The regulations envision that we reach out and consult. And on a question of this magnitude, that involves equities that are far beyond this prosecution, as the questions of the Court have —
JUSTICE KAVANAUGH: So it’s the solicitor general?
MR. DREEBEN: Yes.
Having been told that Jack Smith consulted with a Senate-confirmed DOJ official on these tough issues, Kavanaugh immediately launched into a screed about Morrison v. Olson, the circuit court decision that upheld the Independent Counsel statute.
JUSTICE KAVANAUGH: Okay. Second, like Justice Gorsuch, I’m not focused on the here and now of this case. I’m very concerned about the future. And I think one of the Court’s biggest mistakes was Morrison versus Olson.
MR. DREEBEN: Mm-hmm.
JUSTICE KAVANAUGH: I think that was a terrible decision for the presidency and for the country. And not because there were bad people who were independent counsels, but President Reagan’s administration, President Bush’s administration, President Clinton’s administration were really hampered —
MR. DREEBEN: Yes.
JUSTICE KAVANAUGH: — in their view —
MR. DREEBEN: Mm-hmm.
JUSTICE KAVANAUGH: — all three, by the independent counsel structure. And what I’m worried about here is that that was kind of let’s relax Article II a bit for the needs of the moment. And I’m worried about the similar kind of situation applying here. That was a prosecutor investigating a president in each of those circumstances. And someone picked from the opposite party, the current president and — usually —
MR. DREEBEN: Mm-hmm.
JUSTICE KAVANAUGH: — was how it worked. And Justice Scalia wrote that the — the fairness of a process must be adjudged on the basis of what it permits to happen —
Kavanaugh slipped here, and described the horror of “Presidents,” not former Presidents, routinely being subject to investigation going forward.
MR. DREEBEN: Mm-hmm.
JUSTICE KAVANAUGH: — not what it produced in a particular case. You’ve emphasized many times regularity, the Department of Justice. And he said: And I think this applied to the independent counsel system, and it could apply if presidents are routinely subject to investigation going forward. “One thing is certain, however. It involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute? What would the reaction be if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as picking the man and then searching the law books or putting investigators to work to pin some offense on him? To be sure, the investigation must relate to the area of criminal offense” specified by the statute, “but that has often been and nothing prevents it from being very broad.” I paraphrased at the end because it was referring to the judges.
MR. DREEBEN: Mm-hmm. Yes.
JUSTICE KAVANAUGH: That’s the concern going forward, is that the — the system will — when former presidents are subject to prosecution and the history of Morrison versus Olson tells us it’s not going to stop. It’s going to — it’s going to cycle back and be used against the current president or the next president or — and the next president and the next president after that. All that, I want you to try to allay that concern. Why is this not Morrison v. Olson redux if we agree with you? [my emphasis]
Kavanaugh pretended, as he and others did throughout, that he wasn’t really suggesting this was a case of Morrison v. Olson redux; he was just talking hypothetically about the future.
JUSTICE KAVANAUGH: Right. No, I was just saying this is kind of the mirror image of that, is one way someone could perceive it, but I take your point about the different structural protections internally. And like Justice Scalia said, let me — I do not mean to suggest anything of the sort in the present case. I’m not talking about the present case. So I’m talking about the future.
This intervention came long after Kavanaugh suggested that charging Trump with defrauding the US for submitting fake election certificates and charging Trump with obstructing the vote certification after first charging hundreds of others with the same statute amounted to “creative” lawyering.
JUSTICE KAVANAUGH: Okay. For other official acts that the president may take that are not within that exclusive power, assume for the sake of argument this question that there’s not blanket immunity for those official acts but that to preserve the separation of powers, to provide fair notice, to make sure Congress has thought about this, that Congress has to speak clearly to criminalize official acts of the president by a specific reference. That seems to be what the OLC opinions suggest — I know you have a little bit of a disagreement with that — and what this Court’s cases also suggest.
JUSTICE KAVANAUGH: Well, it’s — isn’t — it’s a serious constitutional question whether a statute can be applied to the president’s official acts. So wouldn’t you always interpret the statute not to apply to the president, even under your formulation, unless Congress had spoken with some clarity?
MR. DREEBEN: I don’t think — I don’t think across the board that a serious constitutional question exists on applying any criminal statute to the president.
JUSTICE KAVANAUGH: The problem is the vague statute, you know, obstruction and 371, conspiracy to defraud the United States, can be used against a lot of presidential activities historically with a — a creative prosecutor who wants to go after a president.
But Kavanaugh returned to his insinuation that it was a stretch to prosecute a political candidate for submitting false certificates to Congress and the Archives under 18 USC 371 after his purported complaint about Morrison v. Olson.
Second, another point, you said talking about the criminal statutes, it’s very easy to characterize presidential actions as false or misleading under vague statutes. So President Lyndon Johnson, statements about the Vietnam War —
MR. DREEBEN: Mm-hmm.
JUSTICE KAVANAUGH: — say something’s false, turns out to be false that he says about the Vietnam War, 371 prosecution —
MR. DREEBEN: So —
JUSTICE KAVANAUGH: — after he leaves office?
None of this intervention made any sense; it wouldn’t even have made sense if offered by someone who hadn’t criminalized an abusive, yet consensual, blowjob for years.
After all, contrary to the demands of many, Merrick Garland didn’t appoint a Special Counsel until Trump declared himself a candidate. By that point, hundreds of people had already been charged under 18 USC 1512(c)(2) and DOJ was at least four months into Executive Privilege fights over testimony from Mike Pence’s aides and Trump’s White House counsel. Jack Smith was appointed nine months after Lisa Monaco publicly confirmed that DOJ was investigating the fake electors and six months after overt subpoenas focused on the scheme came out (to say nothing of the treatment of Rudy Giuliani’s phones starting a year earlier).
This is not a Morrison v. Olson issue.
Rather, Kavanaugh is using his well-established hatred for Morrison v. Olson to complain that Trump was investigated at all — and that, after such time that a conflict arose, Garland appointed a non-partisan figure to head the already mature investigation.
It was one of many examples yesterday where the aggrieved white men on the court vomited up false claims made by Trump.
Kavanaugh made no mention of the appointment of Robert Hur — not just a Republican but a Trump appointee who had deprived Andy McCabe of due process — to investigate Joe Biden for precisely the same crime for which Trump was charged. That’ll become pertinent at such time as Donald Trump’s claim to Jack Smith’s appointment gets to SCOTUS. After all, in that case, Trump will have been similarly treated as Joe Biden. In that case, Hur’s distinction between Biden’s actions and Trump’s should (but probably won’t) reassure the right wing Justices that Trump was not selectively prosecuted.
Speaking of things Kavanaugh didn’t mention, his false complaint — and which Clarence Thomas raised as well — comes at a curious time.
Because of Aileen Cannon’s dawdling, Trump’s challenge to Jack Smith’s appointment won’t get to SCOTUS for months, if ever.
But Hunter Biden, whose challenge to David Weiss’ appointment takes the same novel form as Trump’s — an appropriations clause challenge — may be before the Third Circuit as soon as next week. In a passage of Abbe Lowell’s response to Weiss’ demand that the Third Circuit give Lowell, an observant Jew, three days including Passover to establish jurisdiction for his interlocutory appeal, Lowell scolded Weiss for presuming to know the basis of his appeals.
The Special Counsel boasts that it prepared its motion in “two days” (Mot.Exped.3), but the legal errors that permeate its motion to dismiss only underscore why more time is needed to adequately research and thoughtfully brief the jurisdictional issues for this Court. The Special Counsel ignores numerous bases for jurisdiction (e.g., 28 U.S.C. §§ 1291 (collateral order doctrine), 1292(a)(1) (denial of Appropriations Clause injunction), and 1651 (mandamus)) over this appeal, and the legal claims it does make are flatly wrong, compare Mot.6 (falsely claiming “all Circuit Courts” reject reviewing denials of motions to enforce plea agreements as collateral orders), with United States v. Morales, 465 F. App’x 734, 736 (9th Cir. 2012) (“We also have jurisdiction over interlocutory appeals of orders denying a motion to dismiss an indictment on the ground that it was filed in breach of a plea agreement.”)
In addition to mandamus (suggesting they may either attack Judge Noreika’s immunity decision directly or ask the Third Circuit to order Delaware’s Probation Department to approve the diversion agreement that would give Hunter Biden immunity), Lowell also invoked an Appropriations clause injunction — basically an argument that Weiss is spending money he should not be.
Normally, this would never work and it’s unlikely to work here.
But even on the SCO challenge, there are a number of problems in addition to Lowell’s original complaint: that Weiss was appointed in violation of the rules requiring someone outside of DOJ to fill the role.
For example Weiss keeps claiming to be both US Attorney and Special Counsel at the same time (most obviously in claiming that tolling agreements signed as US Attorney were still valid as Special Counsel), or the newly evident fact that Weiss asked for Special Counsel status so that he could revisit a lead he was ordered to investigate — in the wake of Trump’s complaints to Bill Barr that Hunter Biden wasn’t being investigated diligently enough — back in 2020, a lead that incorporated Joe as well as Hunter Biden, a lead that uncovered an attempt to frame Joe Biden, an attempt to frame Joe Biden to which Weiss is a witness.
The oddities of Weiss’ investigation of Joe Biden’s son may even offer another claim that the right wing Justices claim to want to review. Jack Smith claims to have found only two or three charges with which Kavanaugh, who insists (former) Presidents can only be charged under statutes that formally apply to Presidents, would leave available to charge a President. But there’s one he missed: 26 USC 7217, which specifically prohibits the President from ordering up a tax investigation into someone, which Lowell invoked in his selective and vindictive prosecution claim. Lowell has not yet proven that Trump directly ordered tax officials, as opposed to Bill Barr and other top DOJ officials, to investigate Hunter Biden for tax crimes. But there’s a lot of circumstantial evidence that Trump pushed such an investigation. Certainly, statutes of limitation on Trump’s documented 2020 intrusions on the Hunter Biden investigation have not yet expired.
The Hunter Biden investigation has all the trappings of a politicized investigation that Kavanaugh claims to worry about — and with the Alexander Smirnov lead, it included Joe Biden, the Morisson v. Olson problem he claims to loathe.
That’s a made to order opportunity for Brett Kavanaugh to restrict such Special Counsel investigations.
Except, of course, it involves Democrats.
O/T A while back, there was some consternation around whether or not the president was considered to be an “officer” under section 3 of the 14th amendment. Here again, from Federalist 69, it makes clear that the founders did in fact consider the president an officer of the government.
“The President of the United States would be an officer elected by the people for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince.”
So much for textualism of SCOTUS justices. Those assholes simply decide things based on politics. SCOTUS decisions are a farce.
Brett Kavanaugh, like Trump, wishes he had competent inductive reasoning skills, but he doesn’t. Like Trump, Kavanaugh is a legend in his own mind.
Kavanaugh’s questions were pathetic and sophomoric. So, too, were Alito’s and Clarence Thomas’s questions.
Kavanaugh is only concerned with this upcoming election in November 2024. He’ll never support a democrat for president; he’s concerned now with ensuring that any Republican candidate who becomes the Republican Party nominee, it may be Trump and it may not be Trump, can defeat Biden or another democrat this November.
Kavanaugh’s number one priority is saving the Republican Party from knuckleheads like Trump. And he’ll write rulings and agree to rulings that support that objective.
Exactly like many of the people here accuse the MAGA crowd of not having reasoning skills, the MAGA crowd accuses their detractors of not having reasoning skills. About a year ago, I asked my brother (who incidentally has two undergrad and one grad engineering degrees from GA Tech) if he accepts evidence based rationality as the basis for determining fact from fiction. After the initial affront, we have had an ongoing quasi conversation ever since.
As I think is typical of many, he trusts evidence based rationality when it arrives at a conclusion that he likes. In his words, some things are so true that evidence is not needed, and any contradictory evidence is simply proof that science is corrupt. For him, it is a radical version of libertarianism that falls somewhere between anarchy and feudalism. Attempting to use facts and rationality to criticize / education / influence people who’s defining characteristic (IMHO) is the rejection of empirical rationality is like spraying water at a duck.
Sounds like confirmation bias and Dunning-Kruger are both in effect with your brother.
He seems pretty good at inducing what’s good for the GOP.
IANAL, but it looks like in this Supreme Court there is one way to interpret the law when the interpretation benefits Conservatives and another way of interpreting the law when it hurts Democrats. Even the process appears to be used to benefit one over the other.
“Except, of course, if it involves Democrats.”
I am looking forward to another Scalia-like decision that stipulates that it is “not a precedent” and “applicable only to present circumstances.”
Correct!
And their late intellectual leader, Scalia, only believed in Scalia’s constitutional jiggery-pokery. Scalia never met a precedent he couldn’t reverse.
You are wrong about Scalia. He demanded precedent be followed whenever it supported his desired result. Otherwise he was able to distinguish this case from the controling precedent. You can demonstrate his sophistry by asking in which case did he say “I do not like the result but was bound to follow the law and our precedent”. He found a way to get his desired result every time.
Your comment and your opening line don’t belong together. Whether Scalia distinguished and overcame unwanted precedent with a proverbial six-gun or a fountain pen, he did it just the same.
I am looking forward to another Scalia-like decision that stipulates that it is “not a precedent” and “applicable only to present circumstances.”
Except hardly any of the conservatives wanted to talk about the specifics of the case in front of them, and at least two said they were deciding issues for “the ages.”
Zirc
I’ve read several transcripts lately, and it seems to me that the ideological biases of the five men have corrupted their reasoning skills and eroded their sense of reality. Strangely that has given me some hope that Amy Coney Barrett may be rethinking some of her own ideological biases.
In the Moyle v. Idaho oral argument, she joined the other women pointing out how stupid Idaho’s arguments seemed. In earlier cases it has been clear that she won’t be allowed to join the Boyz Club or play in their tree house. It must be dawning on her how stupid they sound, especially compared to the brilliance of Kagan and my personal hope for the future, Jackson. It must be obvious that the men don’t give a rat’s ass about the impact of their decisions, while the women, especially Sotomayor, are always aware of it.
Other commenters have observed that Barrett seems impressed by Jackson, and the quality of her questions. I’ve read Barrett’s concurrence in the Student Loan case, which is an effort to put some scholarship behind the Major Questions Doctrine. It’s not well-done, and has been widely criticized by academics. Defending these jerk males is going to get old.
Maybe?
I agree!
Amid the calls for Soto to retire 12 years younger than Stephen Brayer, I honestly think 1) She really is a voice of wisdom and 2) She seems key to winning Barrett’s support on cases like this.
I agree that Sotomayor seems to have befriended Barrett, in a way that has made the latter a better Justice. I’ve now listened to multiple oral arguments (including the mifepristone case, and yesterday’s immunity argument), where Barrett has asked really common-sense legal questions. Even though I vehemently disagree with her on Dobbs, she seems to be coming into her own a bit more, rather than being driven solely by ideology (like Alito).
Jackson gets my vote for being the most-prepared, most insightful Justice, which I think also helps to push Barrett into the realm of sanity.
I concur!
This gives me a sliver of hope.
I too concur. But my sliver of hope is slivering fast.
She threw in a comment about presidential immunity from state prosecution, so I wouldn’t embrace her too fast …
Coney Barrett has seven kids, five by birth. Given the odds, all of her pregnancies are unlikely to have been trouble-free. So it must have been a bit jarring in Wednesday’s hearing when Turner started bruiting about women feigning mental illness to procure a post-birth abortion (aka infanticide) under EMTALA. I exaggerate, but not much.
No matter how much help she may have had raising her kids, she’s certain to have heard excuses like: “I didn’t do it. Well, I did, but s/he made me. It wasn’t such a big deal.” The case that Trump is immune must ring a bit like that. Perhaps she’s beginning to behind the ideological smoke screen.
Women have different life experiences than men. In the service of our frail democracy we need more of them running shit. I hope Sotomayor, Kagan and Brown Jackson lean in.
Along those lines:
The Lawyer Defending Idaho’s Abortion Ban Irritated the One Justice He Needed on His Side https://slate.com/news-and-politics/2024/04/idaho-abortion-ban-supreme-court-amy-coney-barrett.html Dahlia Lithwick and Mark Joseph Stern April 24, 2024
Well, Idaho’s AG Raúl Labrador first claimed doctors were lying about airlifting women for emergency care out of state. Then he went on to call Sotomayor “shameful”and the other three women justices “aggressive”. Misogynist much?
The indispensable Jessica Valenti covers it here:
https://jessica.substack.com/p/idaho-ag-justice-sotomayor-is-shameful
Oh, yeah! “Never-the-less, she persisted.”
Just another Whiny-ass Cry-Babyman.
Maybe Coney Barrett’s memoir will be titled “How I Left My Cult and Saved Democracy.”
Not holding my breath, though.
In fact Nina Totenberg has been over at the Barretts’ working on Breakfasts with Amy.
I didn’t watch any of this. I only know what is written here by Marcy and in comments. And maybe a bit on other sites.
I find myself wondering if they aren’t playing to the MAGA base, in an attempt to mollify them when they rule against Trump on the specifics. There will be lots of split opinions on things, but when you come down to it, none of it applies to Trump.
However, this is a very, very politically minded court, and they know the MAGAs aren’t going to like how they are going to have to rule. So … this.
It’s important to understand that if adopted by a majority of the court, Kavanaugh’s clear statement position would lead to a dismissal of the January 6 charges against Trump.
It is a tremendously radical doctrine. Notwithstanding the wide and long recognized understanding that a former President can be indicted for criminal conduct during his term in office, Kavanaugh posits that Congress did not intend for a crime applicable to any person to include the President. There is no foundation for this – it’s a presumption based on fantasy.
But the upshot of his clear statement rule would render almost the entire criminal code a nullity with respect to the President.
How is it even a solution anyway? If Congress passes a law specifying that it applies to the President, then courts would still have to decide if it infringes on the President’s Article II powers. And if a law doesn’t infringe in that way – even when it doesn’t name the President specifically – then there’s no constitutional problem in the first place.
I am really surprised by the exchanges from yesterday. These guys claim to be textualists, but they are just making stuff up.
Given that it’s such a radical doctrine, to what extent might we expect the full Court to reject Kavanaugh’s fanciful position? This seems the more likely result, no? The implications of his extreme view seem too much for even the Thomases and Alitos of the Court to take, given the fact that a Democrat occupies the White House at present. Do they really want to give Biden free rein?
I suspect these newly found “laws” do not apply to Democrat presidents.
…just as a Dem POTUS is not allowed to nominate a SCOTUS candidate in the last year of his tenure. A Repub POTUS can.
How about only 38 days away.
Are there mechanisms that would allow them to defer a decision until 2024 is decided?
The Supreme Court can delay decision for as long as they want.
One of the more cynical maneuvers would be to put the case over for reargument next term. Perhaps the Court would couch that in a request for additional briefing, a la Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
It’s also important to remember that Kavanaugh’s argument re: the clear statement rule -essentially, that a President can’t be criminally prosecuted unless the criminal statute at issue specifically states that it applies to the President – is NOT part of this interlocutory appeal concerning Trump’s “absolute Presidential immunity” defense.
Even Sauer (who encouraged Kavanaugh’s position) acknowledged that particular defense was raised in a different statutory motion to dismiss, which Judge Chutkan has not yet ruled on because of the stay.
Yes, but, as these work, Kavanaugh will either include it in whatever opinion he writes, or be sure that IF Trump is convicted, he’ll throw out the charges on statutory grounds.
It’s also important to understand that the aggrieved men may be factoring THIS decision in how they deal with Obstruction. It’s not easy to tweak obstruction in a way that makes it not apply to Trump. So they have to find another way to get Trump off.
These “aggrieved men” all identify with Trump at a fundamental, deep-down, archetypal, Big Daddy, fairytale level where their identities were first forged. There’s something wrong with all of them.
Why would a court that rushes to rule on contrived cases, ignores precedent and its own code of ethics be worried about an argument not having been raised below? This Court makes the rules it is not bound to follow them.
Indeed. Undoing the criminal law would be a major objective of a dictator. Otherwise, he might be held liable after he left office.
Kavanaugh’s pet theory would require revising the corpus of the criminal law, because Congress would have legislated most of it before his novel, new standard required it to specifically address whether it intended the president, during or after his presidency, to be subject to potential criminal liability.
Once Congress did that, each statute would be subject to review by a radical right majority of this Court, probably necessitating rounds of legislative attempts to comply with potentially shifting S.Ct. requirements.
That exercise would leave Congress too busy to pay attention to what this Court and an errant executive were doing to further undo the American experiment. If the Warren-Burger courts were a Reformation in American law and civil liberties, the Rehnquist – Roberts courts are the Counter-Reformation.
I get this, and yeah, it seems bad, but otherwise Kavanaugh has not struck me as that much of a radical. He has struck me as a political animal, and the reference to “I’m not thinking of the present case, but of the future” seems a tell that whatever he is saying doesn’t pertain much.
My definition of radical and political animal must be light years away from yours.
Coincidentally, I think Kavanaugh is a rapist just like Trump is.
I don’t know. Probably the best way to investigate this line of inquiry is to let the FBI contact a very short list of Trump-approved witnesses, and pretend that constitutes a serious investigation.
Oh wait. That’s already happened.
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The Supreme Court must never be viewed as a partisan institution.
Brett Kavanaugh
So, Brett says we must NOT believe our own eyes.
Exactly. And let’s remember Roberts, Thomas, Alito, Kavanaugh, Gorsuch and Barrett overturned Roe v. Wade even though they testified under oath they would uphold that precedent. They did NOT.
Barret never did this. Which gives her a bit more credibility with me than those others. I don’t think Thomas did, either, but I could be wrong. It was a long time ago. Kavanaugh did. So did Gorsuch.
Frankly, if we ever get a two-thirds in the Senate, they should be booted to the curb for lying under oath to the Senate.
FYI:
https://www.nbcnews.com/politics/supreme-court/supreme-court-justices-said-roe-abortion-confirmations-rcna35246
If the Roberts Court has lost the respect of an ever larger fraction of the U.S. populace, they have only themselves to blame.
Question relevant to the ordering of investigations ordered into Hunter towards the end of this article.
Here’s from the Judiciary interview of a FBI SSA taken on 7/17/23. What is the distinction here between the grand jury’s investigation and USAO investigation? Isn’t the USAO leading the grand jury proceedings? Are they really 2 discrete investigations? If so, are they investigations of the same crimes from the same underlying facts?
Correct. He was fudging on the different language DOJ and FBI use for subject/target, too.
As a similar example, I’ve seen warrants in the Trump docs case that describe Nauta as a target of a warrant before he was a target of the investigation.
So it’s not literally 2 different Investigations? It’s a difference in language used by the FBI and DOJ from within the same investigation?
Yes. Another place you see this is in Scott Brady’s transcript, tho in all things pertaining to Brady, he’s likely being a disingenuous asshole about the nature of those disagreements.
It’s likely that FBI agents were refusing stuff they weren’t permitted to do at an assessment level and they got into a fight about what that included.
ok thanks. I noticed that too about Brady’s interview, which I recently read through more closely.
There’s difference in DOJ & FBI language, which colored Raskin’s characterization. The discrepancy of it seems like early January 2020 Brady begins the investigation at request of Barr and DuCharme, but the Guardian Assessment by the FBI being opened in March. Similar discrepancy regarding the later closure, FBI vs Brady.
It seems like Brady began trying to get the FBI to reinterview Smirnov immediately in January after speaking with Rudy. Then he was held up by an FBI DIOG manual, and 17 layers of FBI signatures. The FBI assessment necessary to be able to re-interview Smirnov. Brady then again held up by covid working from home, and the Pittsburgh SAC retiring, getting an acting SAC, and finally replaced late May/early June. At which point he finds the needle in the haystack line from the 2017 Smirnov report in order to re-interview Smirnov late June 2020.
Smirnov didn’t float his claims until May, when the Derkach stuff was first becoming public.
And Barr at least claims that it was direct from Rudy. I suspect there’s someone, likely in FL, who offered Smirnov up in parallel w/Rudy’s tips.
Or potentially FAR more damning, Barr shut down the Zlochevsky investigation to get to that, and he or someone close to him told Brady to go looking.
If David Weiss didn’t have an incentive to kill those investigations we might learn where that came from.
ah ok thanks.
Is the variations in language between government agencies also relevant to the Clinesmith email? He “clarified” a CIA response related to the word “source”.
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Kavanaugh:
Woah. Which sums up this SC in three sentences. To hell with the present case before us, and Congress, and all precedence, we’re going to “correct” and re-scope the law as we see fit.
This isn’t conservatism, it’s radical activism. If the Democrats prevail in the coming elections, it’s time to deploy the “nuclear option” and pack that court. Put a stop to this court-gone-rogue while it’s still possible.
JUSTICE KAVANAUGH: “it’s a serious constitutional question whether a statute can be applied to the president’s official acts. So wouldn’t you always interpret the statute not to apply to the president, even under your formulation, unless Congress had spoken with some clarity?”
Nothing in the constitution says the president is above the law, so by definition, every law should apply to the President even if the law hasn’t so specified. Even if Congress specified that a law applied to a sitting president, the Supreme Court would still be required to adjudicate claims that the law is unconstitutional because it limited a president’s Article II powers.
What we really need is a constitutional amendment limiting the President’s unseemly power to pardon in situations where he would has a conflict of interest and be required to recuse by the standards used in the judiciary.
“…be required to recuse by the standards used in the judiciary.”
Unfortunately, it seems there’s a new “Clarence Thomas Standard” for recusal.
They also didn’t explicitly mention members of the Supreme Court, come to think of it!
It’s a serious Constitutional question as to whether the President is allowed to murder political opponents on the floor of the Congressional chambers.
That doesn’t mean there’s a whit of evidence suggesting the answer is ‘yes’.
I’m baffled that these alleged jurists are seriously considering the idea that the President should _ever_ be above the law, much less criminal law. They are intoxicated with power and have completely lost track of the foundations of this country.
Seems to me that if our criminal statutes provide boundaries for how citizens should behave, absent any specific exception carved out for the President, the only possible answer is that the law also applies to him.
At some point these arguments become so offensive to read I feel like they must be met with hostility. This isn’t an intellectual game for a prep school debate tourney. These men need to get their heads out of their ….
Brett Kavanaugh made his bones working for Ken Starr. Among his other gofering jobs, he was Starr’s specialist on Clinton’s actual and alleged sexual behavior. He was apparently an avid investigator.
How ironic he should object to a special counsel investigating and prosecuting one former president or a current president’s son. But hypocrisy and inconsistency are among the hard right’s defining characteristics.
I’m guessing power and money seep their way under the presumed veneer of impartial reasoning for some people – might be a defining characteristic of these types. Let those evils get a hold of your soul and you’ll never be free.
Not Ironic at all. Kavanaugh was picked because he belived in Presidential immunity. Se Scotus Blog July 13 2018. “Kavanaugh on Presidential Power.”
It should be possible to hold the President accountable, even for official acts. Saying that the President could not do the job without immunity for all official acts is ridiculous. For many professions in which very consequential decisions have to be made (doctors, airline pilots, police officers, truck drivers, etc…), accountability to the point of possible criminal liability does not prevent people to do their work in good faith. Tragic mistakes can happen, but there is no crime if all was done in good faith. Many actions and decisions of a President may lead to something bad, but there is no ground to sue unless there is proof of corrupt intent. But many official act can be done with a clear corrupt intent, and there should be no cover for this kind of malfeasance.
Agree. And this makes me think of the use of “qualified immunity” that has been used to remove the burden of prosecution from many police and other governmental organizations that have obviously violated laws.
Interesting that “qualified immunity” apparently happened started during the Johnson administration and expanded with Nixon. https://en.wikipedia.org/wiki/Qualified_immunity
All part and parcel of a law for us, and a law for you.
Agree too. To justify providing a new and broad immunity to the President, right-wing of the SCOTUS is picturing a future in which POTUS would be unfairly and constantly persecuted and indicted by his opponent’s DOJ after leaving office. Their solution is to write new constitutional law in a spirit that essentially precedes the creation of the Magna Carta! They suggest giving absolute immunity to the President for all official acts. As if official acts could never be corrupted!
Sure, the scenario that they picture is bad, but the remedy to this is obvious. Of course, DOJ and all its officers should ALSO be held accountable for their action. Malicious persecution by prosectors should also be looked at under the rule of law.
In a representative democracy, public actors are not semi-gods, who float above the rule of law. They are expected to do their job honestly and in good faith. They should all be held accountable for criminal behavior. Then they clearly have an incentive to behave according to the law. That should include police officers, CBP, etc, as well as DOJ prosecutors, and yes, the President too.
This is what living under the rule of law should mean.
When it comes to law enforcement, the immunity part has come to bury the qualified part, along with quite a few citizens.
I just love seeing you run circles around these guys, even if, as you often seem to note, it isn’t going to make a difference. In particular, I like your details – in the case of the Kavanaugh exchange, that the special counsel was appointed once TFG again became a candidate – and the way you weave in other cases – Weiss, Hur – in which you have led your readers to be informed.
I don’t have time to go and read (again) and fully absorb the changes in the special counsel law post-Starr, or do much more than understand the basics of Morrison v. Olson via Wikipedia. But I’m here to chime in that my take on Kavanaugh’s line of questioning was that given the opening, they would have followed Bill Clinton to hell and back post-presidency, and he can’t get out of that rut in his thinking. (A la Tom Fitton in Bill Clinton kept classified materials in his sock drawer.). Thus I would also parse his questions and comments in terms of what it shows about how the process went when he was involved in the Starr IC investigation – he knows they go too far because he goes too far.
I did my skimming of Morrison v. Olson, and then it suddenly occurred to me this evening that Justice Gorsuch’s mom (Anne Gorsuch Buford) could have been the head of the EPA when the events that were the foundation of Morrison vs. Olson took place.
It’s pretty convoluted so I hope I have my facts straight – She resigned in 1983 over a House investigation into her withholding Superfund money to damage the Senate candidacy of Jerry Brown. She refused to turn over EPA documents and was cited for contempt of Congress. Morrison was the special prosecutor appointed to investigate Olson – AAG of Reagan’s OLC – for lying to the House committee investigating the document standoff.
(It’s grievances all the way down! /smh)
Yes, and “[GORSUCH is] still carrying on the family business” –
from Ellie Mystal’s 1/18/24 article about the Chevron argument:
We Are Witnessing the Biggest Judicial Power Grab Since 1803 During a major hearing this week, the conservative justices made clear they’re about to gut the federal government’s power to regulate—and take that power for themselves. https://www.thenation.com/article/society/we-are-witnessing-the-biggest-judicial-power-grab-since-1803/
Thank you for your response to my late-night realization. Interestingly, in looking into Morrison v. Olson more, I had found myself on the website of the org representing the Relentless Inc fishing co. before the SC. But I only went back to read their take on the case after reading Mr. Mystal’s.
I give the justices some credit for going big (dismantling of the executive agencies) rather than sticking with the petty of Reagan and Trump (withholding funds to trip up someone’s political career and fighting with congress to cover it up; running gov’t agencies into the ground administratively). We (citizens) end up with the toxic mess either way, but as Mystal also points out, we can’t vote our way out of judicial hamstringing.
Is it possible the court would sacrifice the case against Hunter Biden in order to restrict Special Counsels? Seems a fair trade for the long game.
A few notes for those needing a bit of comfort or who are open to “hearing” oral argments differently than first instinct might suggest:
In a podcast, former Trump donor, voter, and supporter, but now Never-again-Trumper George Conway offered this very generous reading of oral arguments yesterday, that despite my reservations, I admit, did cross my mind twice — once during Kavanaugh’s (“K”) embrace of Scalia’s lone dissent in Morrison, and once again when Gorsuch (“G”) affirmed with one of the advocates the adequacy of adopting the civil-case Blassingame official-versus-private-acts distinction in this criminal case (Candidate-Office-Seeker versus President-Office-Holder).
1) G, K, and, charitably, Alito’s quick ‘dismissal’ of the facts of the current case occurred because it is clear-cut that Trump was engaged in private acts and is subject to prosecution, if any statute he’s charged with has been “clearly established by law” to apply to an office seeker.
2) G and K, plus Roberts, if they indeed are looking beyond the current case, may simply be thinking ahead for how to keep Trump from prosecuting Biden and other enemies should Trump return to office. One justice could even be bold enough to propose legislative language, or refer Congress to the very statute Marcy cites above.
3) The women justices + pursuadable /already persuaded CJ Roberts should prevail with an opinion limited to the current QP and leave “the grand rule proposals” of G or K for their concurrences (or dissents).
4) The government’s advocate, Michael Dreeben, is so well-respected by the justices that they look to him when they need help parsing difficult questions of criminal law and they will, indeed, strongly consider his arguments made yesterday.* His being the advocate for the US could have caused the attitude of some justices discussed in 1 above.
5) Don’t count out the usually-quite-silent Clarence Thomas. He has made strange bedfellows in criminal law cases before.
https://empiricalscotus.com/2024/04/01/charting-the-justices-decisions-cutting-across-ideological-lines/
6) Despite the talk about disrespecting ham-sandwich indictments, the Court has always adhered to the presumption of regularity in judicial review of the executive branch decisions or presumption of good faith for law enforcement officers’ conduct (which includes prosecutors), so there is no reason they should abandon this now.
7) So, “all that’s needed” at this juncture is for 5 justices to decide that at this point, at least 1 charge of the DC indictment is sufficiently clear (not vague in it’s elements) for trial to procede. Since several of statutes were used to prosecute other J6ers, Conway felt there will be 5 or 6 votes that allow any Constitutional vagueness questions to be, if not settled by Fischer, adjudicated post-trial.
tje.esq adds here: The vagueness of criminal statutes has been an annoyance to Supreme Courts for decades and is an 8 to 1 case killer in this current court’s judicial makeup. That, plus the Court’s recent exuberant embrace of the Major Questions Doctrine in Admin Law, caused me to be unsurprised by the justice’s skepticism over the “sufficient clarity” of some of the statutes charged in the indictment.
8) Conway is also one of the Weissman+ Katyal bretheren who believe Chutkin will be given the power to, and will indded hold, an evidentiary hearing up to 5 days long, where Jack Smith will present his evidence to prove sufficiency for trial.
Highly optimistic, I know, but if you’re up for it:
https://podcasts.apple.com/us/podcast/george-conway-explains-it-all-to-sarah-longwell/id1725387804
———
*When Dreeben retired from the Solicitor General’s Office, where he served under Bush 1, Clinton, Bush 2, O’Bama, and Trump, judges and advocates on both sides of the political spectrum sent in tributes
https://www.scotusblog.com/category/special-features/tributes-to-retiring-deputy-solicitor-general-michael-dreeben/
about “the quality of his judgment,” “depth of his expertise and experience,” and knowledge of the criminal law, including “novel criminal law issues.” The Supreme Court Justices, like all members of the bar who know him, trust that Dreeben’s “analysis of the issues would be considered, objective and rooted in a clear understanding of the duty to see that justice is done” which included telling his bosses at DOJ “when to confess that the United States has won a judgment in error, and when the public interest is best served by asking the Supreme Court to definitively settle an issue and clarify the law” regardless of what it meant for his side of the case: “win or lose.” https://www.scotusblog.com/2019/08/a-toast-to-michael-dreeben/
Thanks for noting some less-depressing possibilities, tje.esq@23.
If I had any faith left in this Supreme Court to do the right thing (which I don’t), your post would be comforting.
Thanks for summarizing. I don’t do podcasts. It’s all I can do to record my own.
But I was curious.
Speaking of curious I’ve also asked George to help me understand how Kav can believe presidents can only be prosecuted under statutes that say presidents can be charged when he pursued Bill Clinton for perjury.
…not trying to anticipate George’s response, but guessing Kavanaugh himself would reply:
Clinton, who was never criminally charged (but held in civil contempt and congressionally impeached), accepted an offer of immunity from federal prosecutors for allegedly testifying falsely in a civil proceeding — a purely private act (conduct that advanced a personal, and not governmental, interest*). Because Clinton’s acts were private, any criminal statute that would have been cited in the government’s immunity offer would be a ‘generally applicable’ criminal statute that applies to ‘ordinary Joes,’ and therefore applied to Clinton’s private act. In Thursday’s oral argument, Kavanaugh (and Gorsuch) argued for specificity in any criminal statute used to charge a former president’s OFFICIAL conduct while he was president, which was not the conduct in question in Clinton’s case.
I think your larger question, Marcy, is about Kavanaugh’s consistency over time, so I link to a 1998 law review article he wrote about special counsels and criminal investigation or indictments of presidents, which might offer some insights to his “before Trump” views that could be potentially contrasted with his statements in oral arguments and any legal opinion he might draft.
THE PRESIDENT AND THE INDEPENDENT COUNSEL, 86 Geo. L.J. 2133, July 1998 by Brett M. Kavanaugh https://www.wsj.com/public/resources/documents/2018_0628_kavanaugh_1998_president_independent_counsel.pdf
——–
* Official acts advance “governmental interests of a government agency” (FN 106, p. 35; *2166), or a governmental interest in maintaining the public trust (See, e.g., offset quote, p. 26; *2174).
While not addressing your specific question,** a few of Kavanaugh’s 1998 assertions address three arguments Trump explicitly makes in his claim of absolute immunity:
1) if “Congress declines to investigate, or to impeach and remove the President,” he could still be held accountable for commiting crimes, but “there can be no criminal prosecution of the President at least until his term in office expires.” (p. 18, Westlaw version; *2161 in Law Review pagination)
2) The suggestion that subjecting a president to criminal process would “have a chilling effect—that the presidency might be disabled and that governmental officials might be less forthcoming to a President. . . if they knew that the information could be disclosed in criminal proceedings” is “illusory” and “was rejected by the Supreme Court in Nixon [v. United States, 1974].” (p. 26; *2175)
3) A president is only immune from criminal prosecution during his term in office. After his term, “There is simply no danger” that his “dastardly deeds. . . would go criminally unpunished” after he left office. (p.19, *2161) Criminal proceedings are different from investigations involving congress, civil cases, or citizen (FOIA) request where a president might enjoy some sort of “absolute”privilege, because “criminal proceedings against the President . . .seek to enforce public, not private, rights.”(p. 17; *2159). And upholding the rule of law is “profoundly manifest” in the principle that “guilt shall not escape” those responsible for criminal acts (p. 28; *2168)
In addition, Kavanaugh recommended Congress pass a law clarifying that:
4) In order to claim immunity from disclosing information (executive privilege) “sought by the United States” through “federal grand jury or criminal trial subpoena,” a president would have to cite a federal statute that “that refers specifically to the privileges available to government officials or agencies in grand jury or criminal trial proceedings.”***(p. 9; *2146)
5) Presidential immunity from criminal prosecution expires with the president’s term in office, when any “the statute of limitations for any offense against the United States committed by the President” is tolled. (Id.)
6) and fyi, Kavanaugh answered Justice Barrett’s question about why presidents should be treated differently from also-impeachable SCOTUS justices.(See p.17 just below the fold, or the paragraph just above the start of *2160’s Alexander Hamilton quote, and continuing on p. 18). He also addresses Trump’s contention that the founders were (more) concerned about factionalism.
———
** Kavanaugh only discusses the nature of any charge for a former president’s acts occurs in an awkwardly worded footnote quoting Jones v. Clinton (1997): “With respect to acts taken in his ‘public character ’—that is official acts—the President may be disciplined principally by impeachment, not by private lawsuits for damages. But he is otherwise subject to the laws for his purely private acts.” (FN 74, p. 33; *2159)
*** Note the specificity of any IMMUNITY statute that Kavanaugh’s proposed legislation requires. Perhaps this is where the specifity idea first arose?
Your link to the empirical analysis was fascinating. Thanks for sharing.
in regards to 1)
If it were truly clear-cut to G, K, and Alito that Trump was engaged in private acts and is subject to prosecution, why wasn’t it until ~30 minutes into the argument, that Amy Coney Barrett interrupted to bring up the alleged acts in the indictment, one by one, asking Sauer to characterize them and official or private? A possible alternative to clear-cut….is that they simply do not care about the case before them. They said as much. Gorsuch sounded like an 8 year old child on Christmas Eve when he said “we’re writing one for the ages!”
First, I always forget this but kudos to emptywheel you are the best!! That goes for the Doctor, Rayne and all of the commenters. Salut!
Now, Dear Justice Kav…may I suggest that the best way to avoid an endless chain of political prosecutions of former Presidents would be for said Presidents to avoid the appearance of impropriety. Ya know kind of like President Biden has for 50 years in public service.
I understand given your workplace this may be hard for you to understand. While you are at it, you may also want to explore what the phrase consent of the governed means. You are losing it rapidly.
Thanks Brett
Sincerely
The Horse of course
To justify providing a new and broad immunity to the President, right-wing of the SCOTUS is picturing a future in which POTUS would be unfairly and constantly persecuted and indicted by his opponent’s DOJ after leaving office. Their solution is to re-write the constitution in a spirit that essentially precedes the creation of the Magna Carta! They imagine that the only way to solve the problem is by giving absolute immunity to the President for all official acts. As if official acts could never be corrupted.
Sure, the scenario that they picture would be bad, but the remedy to this is obvious. And it is already there in the constitution. Of course, DOJ and all its officers should ALSO be held accountable for their action. Malicious persecution by prosectors should also be looked at under the rule of law.
In a representative democracy, public actors are not semi-gods, who float above the rule of law, and can engage in any reprehensible behavior free of oversight. Public actors are just expected to do their job honestly and in good faith. They are not expected to never make mistakes. Nevertheless, it should and must be possible to hold any of them accountable for potential criminal behavior. Then the system clearly creates a uniform incentive for all to behave according to the law. That should include police officers, CBP, etc, as well as DOJ prosecutors, and yes, the President too. This is what living under the rule of law should mean.
It is astounding to me that members of SCOTUS don’t seem to themselves believe in the radical power of the rule of law for all. They need to imagine a society where the highest officials must be protected from accountability by illogical and unjustified rules, a kind of Games of Thrones world where only raw power can maintain order and governance. And we are supposed to be impressed by these legal minds?
Are you not entertained?
Taxing for a Friend
Donald’s access, Hunter’s taxes
His taxes are a case they did unlawfully
Donald’s access, Hunter’s taxes
And that’s why we can’t trust Don
near you and me
Some manna in Don’s panorama
pushed him straight to a courtroom
Meet Aileen, still on the scene
Does she think he hangs the moon?
That challenge of your malice, Don,
Eyebrows raised, insanity?
And slippers who now give us flippers
Got the lowdown, seems to be
Donald’s access, Hunter’s taxes
His taxes are a case they did unlawfully
Donald’s access, Hunter’s taxes
And that’s why we can’t trust Don
near you and me
We remember that old lily liver
He is so thin skinned
And it brings to mind who is weak-spined
A cheater who couldn’t win
By transcontinental association
Don stays on to fight
But he always ends up overwhelmed
He can’t get it right
Donald’s access, Hunter’s taxes
His taxes are a case they did unlawfully
Donald’s access, Hunter’s taxes
And that’s why we can’t trust Don
near you and me
Some folks think he’s slidin’
It’s been rumored that he’s fried
But he connives some hell for you and me
https://www.youtube.com/watch?v=O4oOOiNa3jQ
“George Strait – All My Ex’s Live in Texas”
LOL!
The embodiment of upper middle class Mid Atlantic mediocrity.
How has no news outlet reported on Kavanaugh’s obvious drinking and gambling problems? Seems like an important thing to know who else is potentially compromised on the court. And how did Kavanaugh’s debts get wiped off the books right before his sub-Borkian confirmation?
Re Kavanaugh you have it exactly right – the embodiment of upper middle class Mid Atlantic mediocrity. I’ve lived, worked and raised a family in Montgomery County MD which, in addition to Kavanaugh, has introduced a stunning amount of that particular brand of mediocrity into the body politic.
I am far, far from a fan of Kavanaugh, but if no news outlet has reported on Kavanaugh’s “obvious” drinking and gambling problems, how is it you know he has them?
There are plenty of reasons to disparage the guy, but I’d rather stick to the ones I’m pretty sure of.
Every time Alito, Gorsuch, and Kavanaugh said things that go against common sense and became everything they said they weren’t, like being activist judges and claiming strict textualism while engaging in fantasy theorizing and in this case, issue avoidance as pretext for grand decision, they further justify adding four Supreme Court Justices who will represent the additional four circuits that nine justices currently serve.
My recollection is that Kavanaugh was all for pursuing Juanita Broderick’s rape allegation against Bill Clinton, while even Ken Starr thought the evidence was too thin to go there. I think the Democrats at his confirmation hearing should have spent less time on a serious but unprovable attempted rape allegation (more than 50% likely despite what Susan Collins thought, but still short of “beyond reasonable doubt”) and more time on his “Vicar of Bray” philosophy of jurisprudence, particularly regarding presidents’ freedom from pesky legal actions.
https://berkshirehistory.com/legends/vicarofbray_bal.html