Kavanaugh File: Executive Privilege

Editor’s Note: This is one of a series of stories examining what Democrats are saying about Supreme Court nominee Brett M. Kavanaugh and what Kavanaugh’s record shows on these issues.

With Trump campaign officials under investigation by special counsel Robert Mueller for possible collusion with Russia to unduly influence the 2016 campaign, some Democratic senators have expressed concern that Kavanaugh was hand-picked by Trump in the event that Mueller enters an indictment against the president.

Those senators have pointed to pieces Kavanaugh penned in 1998 and 2009 that make clear Kavanaugh’s opinion that a sitting president should not be criminally investigated or indicted. Whether that means Kavanaugh would rule as a Supreme Court justice that an indictment against Trump would be unconstitutional is another matter. Kavanaugh says he has “a completely open mind” on that question and has never publicly taken a position on it. But he has said and written plenty on the subject. We’ll lay out some of that record and leave it to readers to decide.

: “It seems that you [Kavanaugh] have made — you may have intrigued him [Trump] for another reason — your expansive view of executive power and executive immunity. You’ve taken the unorthodox position that presidents should not be burdened with a criminal or civil investigation while in office.” — at Kavanaugh’s confirmation hearing on Sept. 4.