President Trump’s nominee for Supreme Court, Brett Kavanaugh, argued in a memo more than 20 years ago that a president would likely be compelled to testify in front of a grand jury if subpoenaed.
In a five-page memo addressed to independent counsel Kenneth Starr on Jan. 25, 1995, Kavanaugh questioned why a president who was under subpoena would be treated differently than anyone else.
“Why should the President be different from anyone else for purposes of responding to a grand jury subpoena ad testificandum?” wrote Kavanaugh in a document published by BuzzFeed News on Friday.
Kavanaugh wrote that one could argue the president might be subject to an “implicit exception,” based on time and security demands of the president, but ultimately determined the argument was “unpersuasive.”
“The President would spend almost as much time on a sworn statement as he would on a grand jury appearance,” the memo said. “And the security issue seems especially dubious. The president jogs by the Federal Courthouse, so it would be rather strange to say that security issues prevent the President from appearing before the grand jury inside the courthouse.”
Kavanaugh added that even a “separation of powers” argument “seems weak … given the deeply rooted history and tradition of this country’s jurisprudence that the President is not above the law.”
The president could claim executive privilege once in front of the grand jury if asked to turn over certain communications, he said, “but that seems a different issue altogether.”
The memo was part of almost 5,000 documents made public by the Senate Judiciary Committee and the National Archives on Friday.
Democratic senators have looked for assurances from Kavanaugh ahead of his confirmation hearing on Sept. 4 that he would not hinder special counsel Robert Mueller’s Russia investigation if an issue regarding the case came before the Supreme Court.
