prayer in that case to the school and the supreme court therefore said that the prayer in that case was impermissible. it was very fact-specific, based on how some of the actual prayers had gone down in the school district there. so it was really in the gray area on the facts between the two principles, freedom of speech and freedom of religion for individuals, on the one hand, no school-sponsored prayer, on the other and those two principles are part of the supreme court precedent that i think the courts have applied for a long time now. senator: so what led you to want to take on that representation in the amicus brief? judge kavanaugh: i think at that time i was asked to work on several cases involving religious liberty and religious speech. i also did a case in amicus in the good news club case.
case and of course stuck with the existing system of special counsels. senator: to get back to where you were in 2009 when you wrote this as opposed to using a hypothetical. so we said several times here no one is above the law, i said that in my opening statement, but when you said this, you men no one is temporarily above the law, if a sitting president, she was in office and there was some crime committed, murder, white-collar crime, anything, you are say nothing this article, she shoont be subject to criminal prosecution? judge kavanaugh: that would be issue for congress to consider if it wanted to pursue temporary deferral. there are statutes for members of the military, service members serving overseas, i think president clinton in clinton v jones case cited that as
something statutory deferral, not immunity, important to establish immunity from deferral. but timing of when a particular litigation will occur. i wouldn t call that above the call, i would call that a timing question. senator: okay, that would be a long time if a president was serving for four years or eight years, given and again, i m reading the words, we should not burden sitting president with civil suits, criminal investigation or criminal prosecution, so it feels to me that was your view when you wrote that. judge kavanaugh: well, it was an idea for congress to consider along with many other ideas about judicial confirmations and war powers and all reflecting, that was reflecting on idea congress could consider, whole point was to make help the country do better based on my observations from five and a half years working in a white house where during war, during
consider and the idea was reflecting on my experience after september 11th and what we could do to make the presidency the most effective for the american people. senator: i m trying to understand in practicality when you look at last impeachment proceedings how you would do it if you didn t have an investigation, other ones used independent counsel, special counsel and if you don t have that, don t you effectively eviscerate the ich impeachment part of the constitution? judge kavanaugh: not at all. senator: why would we want to foreclose our ability to use special counsel or independent counsel? judge kavanaugh: so that is your decision ultimately in congress to decide, that is one view you just articulated and of course congress is not enacted any special deferral for civil suit, congress is stuck with jones v clinton result from that
connecticut compromise as it is often referred to. it is important for judges again, not to upset the formal law that is written in the constitution or to upset the compromises reached either in the original constitution or in the amendments, now one key thing to add to that is precedent is part of the constitutional interpretation, as well, as federalist 78 makes clear and judicial power clause of article 3 makes clear, so a system of precedent is built into how judges interpret the constitution and constitutional cases on an ongoing basis, that is part of the proper mode of constitutional interpretation and important system of precedent. senator: thank you. let s shift back to the topic you and i discussed yesterday, religious liberty, a topic of consideration interest and importance to a great many americans. in private practice, you wrote