Kavanaugh’s Papers Don’t Help Trump Avoid Indictment, say scholars

by Noah Feldman

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

Some Democrats and advocacy groups are saying President Donald Trump picked Judge Brett Kavanaugh as his second nominee to the U.S. Supreme Court because of Kavanaugh’s view that a president shouldn’t be indicted while in office. It’s important that not become the narrative of the Democrats’ opposition, because it can easily be refuted.

Properly understood, Kavanaugh’s expressed views actually support the opposite conclusion: that the president can be investigated and maybe even indicted unless Congress passes a law saying he can’t — which Congress has not done.

The key texts here Kavanaugh’s 2009 article in the Minnesota Law Review and his 1998 article in the Georgetown Law Journal.

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