Former president Donald Trump’s legal team, in a Supreme Court filing this week, decided it would be a good idea to cite the past words of Justice Brett M. Kavanaugh.
In doing so, though, they reinforced just how drastic what they seek is: absolute immunity for broadly defined presidential acts. Kavanaugh’s actual words cast that as unthinkable.
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The filing is merely the latest head-scratching move from Trump’s lawyers. And it’s not even the first time they have filed something to the nation’s highest court that fits that description.
The current example involves the lawyers’ citation of a 2009 Minnesota Law Review article from Kavanaugh — almost a decade before his ascent to the Supreme Court.
To hear Trump’s lawyers tell it, Kavanaugh’s article reinforced the dangers of presidents being subject to criminal and civil actions.
“In short, ‘a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President,’ ” the Trump team’s brief says, quoting Kavanaugh. It then adds, in its own words: “The same conclusion holds if that criminal investigation is waiting in the wings until he leaves office.”
Left unstated — but soon noted by law professor Ryan Goodman of Just Security — was that Kavanaugh in the same article actually took a different position from the one Trump’s lawyers advanced.
While Kavanaugh posited that presidents shouldn’t have to face criminal investigations or prosecution while in office, he took no such position on post-presidential indictments. Indeed, he seemed to take the constitutionality of post-presidential indictments for granted.
“The point is not to put the President above the law or to eliminate checks on the President,” Kavanaugh said in the very next paragraph, “but simply to defer litigation and investigations until the President is out of office.”
The title of that section of Kavanaugh’s article is: “PROVIDE SITTING PRESIDENTS WITH A TEMPORARY DEFERRAL OF CIVIL SUITS AND OF CRIMINAL PROSECUTIONS AND INVESTIGATIONS” — emphasis on “temporary.”
Kavanaugh wasn’t even arguing that a president was constitutionally immune from criminal investigation or prosecution while in office; he was merely saying that a president should be, and specifically that Congress should pass a law exempting the president from that.
The Trump team’s using Kavanaugh to make this argument — in a case that now sits before him — is particularly notable. Not only is Kavanaugh one of Trump’s nominees to the Supreme Court, but one of the potential stumbling blocks in Kavanaugh’s confirmation was his expansive view of presidential power. With Trump facing plenty of scrutiny midway through his tenure, Democrats argued that Kavanaugh was too deferential to the chief executive. His previous thoughts on immunity were a major topic of debate and a strike against him with Democrats.
But even then Kavanaugh didn’t go nearly as far as Trump now wants him and the rest of the Supreme Court to go. If it wasn’t already clear that Trump’s claim to full presidential immunity is extraordinary, spotlighting these words from Kavanaugh — of all people — would seem to drive it home.
Of course, few legal experts expect Trump’s immunity claim, which was roundly rejected by an appeals court last month, to succeed. For Trump, the main value of the Supreme Court’s taking up the case appears to be delay. But cuing this up for the nation’s highest court at the very least risks another embarrassing defeat at the hands of Trump-nominated justices such as Kavanaugh.
The Kavanaugh citation follows other dubious inclusions in Trump’s legal filings, both in the Supreme Court and in lower courts:
Trump has pitched his many legal setbacks as a result of a biased and weaponized legal system. But when you have to reach for these kinds of arguments — including citing your own Supreme Court nominee who clearly took a position at odds with your own — it would seem to reinforce that you’re not working with much.
In doing so, though, they reinforced just how drastic what they seek is: absolute immunity for broadly defined presidential acts. Kavanaugh’s actual words cast that as unthinkable.
Cut through the 2024 election noise. Get The Campaign Moment newsletter.
The filing is merely the latest head-scratching move from Trump’s lawyers. And it’s not even the first time they have filed something to the nation’s highest court that fits that description.
The current example involves the lawyers’ citation of a 2009 Minnesota Law Review article from Kavanaugh — almost a decade before his ascent to the Supreme Court.
To hear Trump’s lawyers tell it, Kavanaugh’s article reinforced the dangers of presidents being subject to criminal and civil actions.
“In short, ‘a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President,’ ” the Trump team’s brief says, quoting Kavanaugh. It then adds, in its own words: “The same conclusion holds if that criminal investigation is waiting in the wings until he leaves office.”
Left unstated — but soon noted by law professor Ryan Goodman of Just Security — was that Kavanaugh in the same article actually took a different position from the one Trump’s lawyers advanced.
While Kavanaugh posited that presidents shouldn’t have to face criminal investigations or prosecution while in office, he took no such position on post-presidential indictments. Indeed, he seemed to take the constitutionality of post-presidential indictments for granted.
“The point is not to put the President above the law or to eliminate checks on the President,” Kavanaugh said in the very next paragraph, “but simply to defer litigation and investigations until the President is out of office.”
The title of that section of Kavanaugh’s article is: “PROVIDE SITTING PRESIDENTS WITH A TEMPORARY DEFERRAL OF CIVIL SUITS AND OF CRIMINAL PROSECUTIONS AND INVESTIGATIONS” — emphasis on “temporary.”
Kavanaugh wasn’t even arguing that a president was constitutionally immune from criminal investigation or prosecution while in office; he was merely saying that a president should be, and specifically that Congress should pass a law exempting the president from that.
The Trump team’s using Kavanaugh to make this argument — in a case that now sits before him — is particularly notable. Not only is Kavanaugh one of Trump’s nominees to the Supreme Court, but one of the potential stumbling blocks in Kavanaugh’s confirmation was his expansive view of presidential power. With Trump facing plenty of scrutiny midway through his tenure, Democrats argued that Kavanaugh was too deferential to the chief executive. His previous thoughts on immunity were a major topic of debate and a strike against him with Democrats.
But even then Kavanaugh didn’t go nearly as far as Trump now wants him and the rest of the Supreme Court to go. If it wasn’t already clear that Trump’s claim to full presidential immunity is extraordinary, spotlighting these words from Kavanaugh — of all people — would seem to drive it home.
Of course, few legal experts expect Trump’s immunity claim, which was roundly rejected by an appeals court last month, to succeed. For Trump, the main value of the Supreme Court’s taking up the case appears to be delay. But cuing this up for the nation’s highest court at the very least risks another embarrassing defeat at the hands of Trump-nominated justices such as Kavanaugh.
The Kavanaugh citation follows other dubious inclusions in Trump’s legal filings, both in the Supreme Court and in lower courts:
- In late 2020, Trump lawyer John Eastman claimed near the start of a Supreme Court filing that Trump’s 2020 election loss was inexplicable, in part, because no other candidate had ever won Florida and Ohio while losing the presidency. In fact, Richard M. Nixon did in 1960.
- In a legal brief earlier this year to the U.S. District Court for the District of Columbia, Trump’s lawyers cited a vaguely sourced document full of specious and long-debunked voter fraud claims — even as members of his campaign distanced themselves from the document. Trump’s lawyers argued that the document showed there remained “vigorous disputes and questions about the actual outcome of the 2020 Presidential election,” despite the document showing no such thing and actually demonstrating the opposite.
- Trump lawyer Alina Habba weeks later suggested in a filing that the judge in Trump’s E. Jean Carroll defamation case might have a conflict of interest, citing a thinly sourced New York Post story alleging a decades-old professional relationship between him and Carroll’s lawyer. Habba quickly withdrew the suggestion just a day later as the claim fell apart. And even in her initial filing, she bolded and italicized text from the Code of Conduct for U.S. judges that undermined her claim to a conflict even if the story had been true.
- Trump’s lawyers in an August brief to the D.C. district court cited a pair of highly dubious claims popularized by far-right social media influencers. One of them involved Biden’s November 2022 comment that he was “making sure [Trump], under legitimate efforts of our Constitution, does not become the next president again.” Trump’s lawyers claimed Biden was saying his “administration” would thwart Trump and that his comments added “an unprecedented political dimension to this prosecution.” This claim had been debunked repeatedly months earlier. Biden never cited his administration, and there’s no reason to believe he was referring to prosecutions.
Trump has pitched his many legal setbacks as a result of a biased and weaponized legal system. But when you have to reach for these kinds of arguments — including citing your own Supreme Court nominee who clearly took a position at odds with your own — it would seem to reinforce that you’re not working with much.
