There has been speculation, including by me, that the main reason Trump picked Brett Kavanaugh to replace Justice Kennedy is because his prior writings indicate that he thinks presidents cannot be the target of criminal investigations while in office. But one legal scholar who knows Kavanaugh and has spoken to him at great length about the matter says that Trump may think that’s true, but it’s not.
Ben Wittes, a guy I trust on legal matters a good deal, was on MSNBC. He spoke at the same conference that Kavanaugh did about the question of presidential indictments and investigations (Kavanaugh’s talk turned into that 2009 law review article that has gotten so much attention). He said they spoke at great length about the issue because Wittes wrote a book about it. He also said that if Trump thinks Kavanaugh is going to rescue him from the Mueller investigation, he’s an even bigger fool than we think he is (and he thinks Trump is a massive fool). There are different issues here that are easily conflated:
1. Can the president be indicted while in office? This is debatable, but the DOJ has long taken the position that he can’t be indicted until he leaves office, through Democratic and Republican presidents alike. Kavanaugh agrees that they can’t be.2. Can he be the target of an investigation while in office, whether that investigation ends in indictment after leaving office or in impeachment? I’ve seen some out-of-context quotes from Kavanaugh that suggest that such investigations are very distracting and make the presidents job much harder. But Wittes says he was talking about a matter of policy, not constitutional requirement. He was talking about how he would design a special counsel law were he in Congress, according to Wittes. And, Wittes says, his views on what such an investigation should look like is remarkably close to what is going on with the Mueller investigation.
3. Can the president refuse a subpoena to testify as part of such an investigation? The answer to that is obviously no and Wittes says that Kavanaugh would likely agree with that. He said Kavanuagh does not believe that the president has executive privilege in the face of a legal subpoena during such an investigation.
I haven’t read that 2009 article, nor an earlier 1998 article on the same subject that Wittes refers to, but I assume that Wittes is describing his views accurately because he has a long track record of being very careful when speaking on such issues and of being scrupulously non-partisan.