The University of Minnesota Law School released video Thursday of a lecture U.S. Supreme Court nominee Brett Kavanaugh gave at the U in 2008 that outlines his argument that presidents should not be subject to criminal prosecution during their presidencies.
Kavanaugh was nominated by President Trump Monday to fill the vacancy left by retiring Justice Anthony Kennedy.
Kavanaugh, who drafted the Starr Report, which laid out the grounds for impeaching then-President Bill Clinton, changed his views on whether sitting presidents should be subject to civil suits, criminal prosecutions and investigations.
He laid out his argument in a speech he gave at the University of Minnesota Law Review's annual symposium in October 2008, and then in a subsequent Law Review article published in 2009.
"The country wants the President to be 'one of us' who bears the same responsibilities of citizenship that we all share," he wrote. "But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office."
He said he came to that conclusion after working in the White House for President George W. Bush, and seeing the weight of the presidency up close. He writes that the country would have been better off had Bill Clinton been able to focus on Osama Bin Laden, who, during the Clinton presidency, was connected to the 1998 suicide bombings of the U.S. Embassy in Nairobi, Kenya which killed hundreds of people, without the distraction of the investigations he faced.
"Congress might consider a law exempting a President — while in office — from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel," Kavanaugh wrote. "Criminal investigations targeted at or revolving around a President are inevitably politicized by both their supporters and critics."
He argues that the Constitution already provides a check on the office, "If the President does something dastardly, the impeachment process is available."
The speech and law review article have raised questions about Kavanaugh's nomination in connection to the current Special Counsel investigation into possible connections between the Trump campaign and Russian meddling in the 2016 presidential election.
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