Why Brett Kavanaugh already shot down Trump’s immunity-from-prosecution claim — 2 decades ago

13 December 2023

Former President Donald Trump is claiming that because he was still president in late 2020 and early 2021, he enjoys "immunity" from prosecution in special counsel Jack Smith's election interference case. That "immunity," Trump claims, renders the case invalid.

Smith considers Trump's immunity-from-prosecution argument in the case ludicrous, and U.S. District Judge Tanya Chutkan has agreed. In a December 1 ruling, Chutkan stressed that the office of the presidency "does not confer a lifelong get-out-of-jail-free pass."

Trump has appeared Chutkan's ruling, and Smith is asking the U.S. Supreme Court to review the matter as soon as a possible.

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In a Tuesday, December 12 broadcast, MSNBC's Lawrence O'Donnell pointed out that one of the High Court's justices, Trump appointee Brett Kavanaugh, has already expressed his views on the immunity-from-prosecution question.

O'Donnell told viewers, "At least one member of the Supreme Court has already agreed, in writing, with Judge Chutkan's ruling. And what makes this an especially crushing setback to Donald Trump's hopes in the Supreme Court is that the member of the Court who fully agrees with Judge Chutkan is one of the three justices appointed by Donald Trump. That means there are likely tonight at least four votes against Donald Trump on the Supreme Court, with only one more vote needed to crush the Trump appeal."

The MSNBC host went on to say that "the breaking news of the night is actually 25 years ago" — meaning that Kavanaugh ruled on the immunity-from-prosecution subject in 1998.

"In July 1998," O'Donnell explained, "Brett Kavanaugh wrote a 38-page article for the Georgetown Law Journal, complete with 167 footnotes. The title of what is now the most important thing Brett Kavanagh ever wrote before becoming a Supreme Court justice is 'The President and the Independent Counsel.'"

Kavanaugh, in 1998, wrote, "Congress should establish that the President can be indicted only after he leaves office voluntarily or is impeached by the House of Representatives and convicted and removed by the Senate."

Trump left office on January 20, 2021, when Joe Biden was sworn in as president.

O'Donnell told viewers, "Page 16 of Brett Kavanaugh's article removes all doubt about what Supreme Court Justice Brett Kavanaugh actually thinks."

Watch the video below or at this link.

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