Finally, finally, Brett Kavanaugh has won Senate confirmation to serve on the mightily influential U.S. Court of Appeals for the District of Columbia. Now it can be revealed. He’s long wanted Congress to do the right thing and not evade its responsibilities. Here’s what he wrote in a post-Clinton impeachment and acquittal symposium in The American Spectator‘s April 1999 issue:
The most important policy question emerging from the Lewinsky saga is how to investigate a president accused of illegal conduct. As both the Lewinsky and Whitewater matters demonstrated yet again, the ironic legacy of Watergate — a scandal in which aggressive congressional inquiries helped uncover presidential crimes — is that we no longer count on Congress to lead an investigation into possible presidential wrongdoing. During the Clinton presidency, for example, the main witnesses regarding the president’s possible misconduct — David Hale, Jim McDougal, Susan McDougal, Monica Lewinsky, and Betty Currie — never testified in public hearings held during Congress’s Whitewater and Lewinsky inquiries.
The primary responsibility for investigating the president has migrated from Congress to a criminal prosecutor, the independent counsel. This transfer of investigative responsibility not only is constitutionally dubious, it is illogical. If we assume that a sitting president cannot or should not be criminally indicted, a criminal prosecution of a president could occur only after he left office. As a result, the fundamental question is not whether a president accused of illegalities should be criminally prosecuted, but whether he should continue to hold office. Because Congress is the entity constitutionally assigned to determine whether the president should remain in office, it follows that a congressional inquiry should take precedence over a criminal investigation of the president.
Indeed, if there is an allegation of presidential wrongdoing, a congressional inquiry coupled with the threat of perjury prosecutions afterwards also should take precedence over the criminal investigation of any presidential associates (except, perhaps, in violent crime cases) — even if the congressional inquiry would require immunity for those associates. It is more important for Congress to determine whether the president has committed impeachable offenses or otherwise acted in a manner inconsistent with the presidency than for any individual to be criminally prosecuted and sentenced to a few years in prison.