Brett Kavanaugh provides clue into court's eventual ruling on Trump immunity case

A legal review written more than a decade ago by U.S. Supreme Court Justice Brett Kavanaugh could provide a preview of how he will rule on Donald Trump's sweeping immunity claim.

The Trump-appointed Kavanaugh, who was confirmed in 2018, published the article nine years earlier while serving as a U.S. Circuit Court judge, saying that the public vastly underestimated the difficulty of the president's job and arguing they should be protected from criminal prosecution while focusing without distraction on the duties of their role, reported Insider.

"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 wrote.

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Kavanaugh argued that only the Constitution provides a check against a president who breaks the law.

"If the President does something dastardly, the impeachment process is available," Kavanaugh wrote. "No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress. Moreover, an impeached and removed President is still subject to criminal prosecution afterwards."

Kavanaugh noted in the article that he had changed his position on that topic before writing, so it's possible he's changed his mind again, but a legal expert wasn't sure the justice would agree that Trump could only be held criminally liable for actions he took in office if he had been impeached and removed by Congress for those actions.

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"I don't read that as saying that Kavanaugh would agree with the Trump argument about you have to be impeached and removed before you can be prosecuted," said Jonathan Entin, a retired constitutional law professor at Case Western Reserve University. "I read that part of the article as saying that the president is not subject to indictment and prosecution while in office. That is a position that the Department of Justice has maintained under both Democratic and Republican administrations alike."

Entin said he did not expect the court to completely resolve the question of presidential immunity but instead send the case back down to lower courts, which would likely prevent Trump from being tried in the Jan. 6 case before the November election.

"My sense is that we are probably going to get something that looks like a 6-3 decision, where the three Democratic appointees will dissent, and the six Republican appointees will say that this case has to go back to the lower courts to sort out what part of the indictment involves official actions — for which the President is immune from prosecution at any time — from things that are not, and that will kick the can down the road," Entin said.

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