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Where Supreme Court Nominee Brett Kavanaugh Stands On Executive Power


So we just heard Senator Durbin talking about one of the big issues Democrats have raised about Kavanaugh's nomination, what protections he thinks the Constitution provides for a sitting president under investigation. Now, here to dig into those concerns is Loyola Law School professor Jessica Levinson. Welcome to the program.

JESSICA LEVINSON: Thank you for having me.

CORNISH: What do we mean when we say executive power? What are the questions about what Kavanaugh believes when it comes to, say, investigating or prosecuting a sitting president?

LEVINSON: Well, we mean a couple things when it comes to executive power. So the first and most kind of newsworthy issue is of course whether or not the president can be indicted. What we have from Justice Kavanaugh is very good evidence to suggest that he does not in fact think a sitting president can be indicted.

CORNISH: You mentioned evidence. What do we know about how he thinks about these issues? How do we know it?

LEVINSON: Well, what we know is from a 2009 law review article that he wrote. Judges often write law review articles to talk about a specific issue that they think is important. And what Judge Kavanaugh wrote in that article was that he thinks that there are very good reasons that Congress should pass a law which says you cannot indict a sitting president.

CORNISH: So what does that mean in the context of what you just heard from Senator Durbin?

LEVINSON: Well, I think what that means is that Judge Kavanaugh has very smartly realized that he has this law review article that says you should not indict a sitting president for a variety of issues. It takes their attention away from the very important job that they have, and there's certain separation of power issues. And I think that he knows this law review article is now a hot topic for senators. And so he's going to do what frankly we've seen every Supreme Court justice do when they have weighed in on an issue, which is to say, I take each case as it comes; I have an open mind; I had these specific views, but it does not mean that I cannot be fair.

CORNISH: But does the fact that in that article he essentially called for Congress to take action - right? - for them to pass a law that would prevent action being taken against a sitting president - means that, like, there is some room there?

LEVINSON: I think that that's going to be what Justice Kavanaugh says to sitting senators. But no, I think what future Justice Kavanaugh was really arguing in that law review article is that a sitting president should not be indicted. And what he says there is he thinks the best mechanism to ensure that is that Congress pass a law. It doesn't mean the Supreme Court doesn't have discretion to make the same ruling.

CORNISH: What's your thinking on all this as the Mueller investigation continues. I mean, is there a scenario in which something that comes out of the Mueller report essentially ends up before the Supreme Court?

LEVINSON: Absolutely. There are a number of questions that could come before the Supreme Court. One question which I think is settled but is still a question that could come before the Supreme Court is whether or not you can subpoena a president for live testimony. And then obviously this issue of whether or not you can indict a sitting president I could see coming before the Supreme Court. I don't think that that's particularly likely because I think that Robert Mueller is adhering to the Department of Justice guidance which indicates that you cannot indict a sitting president. And so I think what Robert Mueller is preparing is really a document for our political branches.

CORNISH: Given what you know about the other justices, where would Kavanaugh fit in when it comes to these issues? What kind of court do we have when it comes to the executive branch and its powers?

LEVINSON: We have a court that believes that the executive has broad powers. We saw that in the Supreme Court's ruling, for instance, recently in the travel ban decision. And what Justice Kavanaugh would do is solidify how conservative the court is on these issues. And he would solidify the idea that the president has broad authority and discretion.

CORNISH: Jessica Levinson is a professor at Loyola Law School. Thank you for speaking with ALL THINGS CONSIDERED.

LEVINSON: Thank you. Transcript provided by NPR, Copyright NPR.

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