Dang…that’s a really good analysis of the arguments.

Justice Brett Kavanaugh appeared sympathetic to the former president’s argument that criminal statutes do not apply to the president unless they say so specifically. He told Dreeben that it’s a “serious constitutional question whether a criminal statute can apply to the president’s criminal acts.”

Kavanaugh – who served as a deputy to Ken Starr during his investigation of then-President Bill Clinton – cited the Supreme Court’s 1988 decision in Morrison v. Olson, upholding the constitutionality of the independent counsel statute, as “one of the Court’s biggest mistakes” because it “hampered” presidential administrations. When former presidents are subjected to prosecution, Kavanaugh said, “history tells us it’s not going to stop.”

I don’t have anything better to do (yay for being off work today), so I want to dig into this because I don’t really see the problem. Shouldn’t presidential administrations being hampered in criminal activity?

Morrison v. Olson basically upheld the constitutionality of the Independent Counsel Act, which was used to appoint Alexia Morrison to investigate and prosecute any federal violations Theodore Olson, then Assistant Attorney General, had committed during an investigation of the EPA. Upholding it meant that Congress could appoint an independent counsel “to investigate and prosecute crimes by high-ranking members of the executive branch.”^[1]. In other words, the judicial branch, via the Attorney General, could appoint someone with executive power to investigate and prosecute executive members.

In short, Kavanaugh thinks this ruling violates the separation of powers and, as a result, has reigned in the range of actions presidential administrations may have taken in the past. To be fair to him, the Independent Counsel act was used to prosecute government officials in the Watergate Scandal, the Iran-Contra affairs, and the Whitewater scandal^[2]. So, it’s been used, and Kavanaugh’s concern is legitimate.

And that concern is relevant to Trump’s immunity cases because, if they say that Trump isn’t immune from his allegedly criminal acts, then it further constrains presidential administrations. The reductio ab absurdum argument is that of course presidents should be held accountable for their criminal actions. Duh! The more intellectually honest consideration is that, while president’s should indeed be held accountable for their criminal actions, allowing Trump to be held accountable would encourage investigating and prosecuting the criminal actions of future presidents as yet another tool for political dominance.

Fundamentally, I think Kavanaugh’s concern is less about Trump’s accountability specifically than the functioning of American democracy generally. Having worked through this myself, I better understand where he’s coming from, but…Trump needs to face consequences for what he did as president. IMO, if American democracy can’t function smoothly if it’s highest political offices can’t engage in criminal behavior, then American democracy shouldn’t function smoothly. Better a dysfunctional democracy with accountability than it’s illusion without.

(Also, the footnotes below are so cool! Definitely using them more often!)