Trump's Supreme Court immunity brief leans on Kavanaugh’s not remembering his own argument

Before he became a Supreme Court justice, Brett Kavanaugh argued against prosecuting sitting presidents. Donald Trump isn’t a sitting president.

March 20, 2024, 5:13 PM EDT
By Jordan Rubin

In his immunity brief to the Supreme Court, Donald Trump name-checks two articles by Brett Kavanaugh from before Trump appointed him to the high court. The citations were obviously meant to support the former president’s broad immunity claim. But a closer reading — beyond the quotes Trump's lawyers plucked from them — shows that Kavanaugh's words actually support the notion that former presidents can be prosecuted.

The first Kavanaugh article cited in Trump's brief is titled “Separation of Powers During the Forty-Fourth Presidency and Beyond.” The former president quotes a line from it that says that “a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.” Trump’s lawyers then write, “The same conclusion holds if that criminal investigation is waiting in the wings until he leaves office.” But as NYU law professor Ryan Goodman observed, Kavanaugh said in the same article, “The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office.”

The other Kavanaugh article cited in Trump’s brief is titled “The President and the Independent Counsel.” The former president quotes a line from that one that says, “Prosecution or nonprosecution of a President is, in short, inevitably and unavoidably a political act.” Trump’s lawyers then write that that observation “applies to former Presidents as well — and it applies most of all to a former President who is the leading candidate to replace the incumbent who is prosecuting him.” Yet in that piece, too, Kavanaugh explicitly referred to the possibility of prosecuting presidents after they leave office, even specifying that statutes of limitations shouldn’t prevent such prosecutions.

Kavanaugh, of course, is familiar with his own work — he can at least review it ahead of the oral argument, set for April 25. It will be interesting to see whether he questions Trump’s lawyer about the full context of those works. Likewise, we’ll see whether special counsel Jack Smith quotes Kavanaugh more expansively in his responding brief due April 8.

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Jordan Rubin
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MSNBC, he was a legal reporter for Bloomberg Law.