Trump was wrong to cite Brett Kavanaugh in immunity brief: ex-prosecutor

21 March 2024

Many legal experts were shocked when the U.S. Supreme Court decided to hear former President Donald Trump's presidential immunity argument in special counsel Jack Smith's election interference case. Oral arguments are scheduled for April 25, and a ruling isn't expected until late June — or later.

U.S. District Judge Tanya Chutkan, assigned to the case, originally set a trial date of March 2. But the Barack Obama appointee has said she will not set a new trial date until the immunity matter is resolved.

Trump claims that because he was still president in late 2020/early 2021, Smith's election interference case is invalid and needs to be dismissed — an argument that Chutkan flat-out rejected, writing that U.S. presidents do not enjoy a "divine right of kings."

In a legal brief, Trump and his lawyers cite arguments that Justice Brett Kavanaugh made on presidential immunity in the past.

But MSNBC legal analyst Jordan Rubin, a former prosecutor for the Manhattan District Attorney's Office, emphasizes that citing Kavanaugh was an unwise move in light of what the now-justice said before he was on the Supreme Court.

Rubin, in a March 20 column, explains, "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 U.S. Department of Justice (DOJ), as former special counsel Robert Mueller testified after delivering his final report for his Russian election interference investigation, has long had a policy against prosecuting a sitting president. Although there is nothing in the U.S. Constitution that prevents a sitting president from being criminally prosecuted, DOJ's view is that such a prosecution could be destabilizing for the federal government.

After President Richard Nixon resigned because of the Watergate scandal in August 1974, his successor, President Gerald R. Ford, granted him a full presidential pardon — which, according to many critics of Trump's immunity claims, wouldn't have happened if Ford had believed that an ex-president enjoyed absolute immunity from criminal prosecution.

Kavanaugh, Rubin notes, had a lot to say on the immunity subject in two articles that Trump and his lawyers cite in the brief — one of them from 2009 and headlined "Separation of Powers During the Forty-Fourth Presidency and Beyond," the other from July 2018 and headlined "The President and the Independent Counsel."

The now-justice argued against prosecuting a sitting president. But Kavanaugh, Rubin observes, also wrote, "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."

Kavanaugh, according to Rubin, "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," Rubin writes. "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."

Jordan Rubin's full MSNBC column is available at this link.

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