Fact check: Dianne Feinstein's claims about the president's supreme court nominee


The U.S congress member Senator Dianne Feinstein wrote a tweet  in which she said that the president’s supreme court nominee, Brett Kavanaugh, had made several past claims about the rights of sitting presidents.

Sen Dianne Feinstein on Twitter

The president’s Supreme Court nominee has said sitting presidents can NOT be prosecuted, should NOT be investigated, and should have the authority to fire a special counsel AT WILL. With the president facing serious legal jeopardy, the nomination should not be moving forward.

 

Claims: 

According to Feinstein, Kavanaugh has claimed three things:

  1. “sitting presidents can NOT be prosecuted,”
  2. “should NOT be investigated,”
  3. “and should have the authority to fire a special counsel AT WILL”.

Fact Check: 

Claim 1:

During a conference at Georgetown Law School in 1998, Kavanaugh raised his hand to answer “yes” to a question asked by the moderator – “How many of you believe, as a matter of law, that a sitting president cannot be indicted during the term of office?”. Politico has covered the story here. 

Kavanaugh signaled sitting president couldn’t be indicted

Defenders of Supreme Court nominee Brett Kavanaugh are accusing his critics of distorting his views on whether a sitting president can be indicted, but they may be overlooking another key clue about his take on what’s likely to be a contentious issue at Kavanaugh’s Senate confirmation hearing.

Also, in a 2009 article published on Minnesota law review, Kavanaugh wrote, “With that in mind, it would be appropriate for Congress to enact a statute providing that any personal civil suits against presidents, like certain members of the military, be deferred while the President is in office”.

He continued: “Deferral would allow the President to focus on the vital duties he was elected to perform.”

He also wrote, “Congress should consider doing the same, moreover, with respect to criminal investigations and prosecutions of the President. In particular, 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.”

Since a full prosecution of a case depends on there first being an indictment, the first claim is true.  Kavanaugh’s position is that a sitting President can not be indicted.  (Though an indictment and prosecution could be deferred until after the President has left office.)

The second claim, that the President “should NOT be investigated” is also true.  Kavanaugh has specifically argued that Congress should consider a law exempting the President from criminal prosecution and investigation.

The third claim… do you have anything to add here?  Specifically about dismissing a special counsel at will?
Some evidence:

  1. This article from Mother Jones suggests the opposite.
  2. However, the difference between an Independent and a Special counsel must be understood before drawing a firm conclusion, see this discussion.
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