let me ask you this. we are heading into a new year and one of the fights we can clearly expect is the confirmation over attorney general nominee barr. you wrote a long memo with a breathtaking view that dove tailed with things that justice brett kavanaugh had written in that minnesota law review article. explain the larger view that the president seems to be appealing to him perhaps simply out of self-interest. well, that s right. presidents, as a rule, tend to have expansive views of the power. it is basically a more absolute view of executive power and limitations especially on the congressional the ability of the legislative branch to step on any of those powers.
liberal scholars who have said that most that most liberal scholars hold the view, for example, that presidents should not be may not be indicted while they are sitting, judge kavanaugh doesn t necessarily hold the view but it s odd that democrats are criticizing him for supposed view that s entirely mainstream. arthel: he did i don t want to stick on this, but judge kavanaugh did write in his in the minnesota law review that a sitting president should not be subjected to any sort of trial or subpoena as part of a policy as part of policy proposal for congress to adopt. obviously the very fact that he was offering that as a policy proposal which seems to suggest that he doesn t think the constitution requires it. arthel: okay, understood, we will move on because i want to talk about your former boss and as you all know the senate confirmed justice antonin scalia
but i want to move on because you ll be testifying at the brett kavanaugh hearing today. what are you expecting? what do you expect to tell them? well, the first question is i m not sure when that will happ happen. when i heard chairman grassley say they could go saturday and sunday to finish this up. it gave me a few palpitations. i m on the last panel dealing with executive power. the two prior panels, one dealing with the issue of abortion, the other dealing with health care, those can be contentious subjects so i don t know that they will be on time but late this afternoon i think i will get my shot to share with the committee what i can. of course they re very interested in whether or not brett kavanaugh believes a sitting president can be subpoenaed and indicted or is subject to a different set of laws as the rest of us and he had this 2009 minnesota law
taking place yesterday, that of judge kavanaugh. he declined to speak about hypotheticals, in specific hypothetical of presidential subpoenas though he has in the past and he certainly addressed other hypothetical situations in yesterday s hearing. what is the justification for that? why was he able to get away with some hypotheticals and other hes would answer? reporter: i would say today the reality is that people who want the know where he stands on issues that he has, as you acknowledged, written about in the past, specifically in the minnesota law review, will continue to question him and ask if he can provide some level of clarity for where he stands when it comes to how commanders in chief should be treated when they are found to have done something in violation of the law while in office. i think what he is trying to do obviously is not be pigeon holed into a firm answer and position like his writings have suggested he should be. that s going to be a problem for
immunity, but deferral of suits for presidents if congress so wanted. and so in the minnesota law review article, i put out some ideas about whether congress may want to think about that. and why did i do that? i think senator durbin asked yesterday what changed that made me think about that. what changed was september 11th. that is what changed. so after september 11th, i thought very deeply about the presidency and i thought very deeply about the independent counsel experience. and i thought very deeply about how those things interacted. and i thought very deeply about seeing president bush when he came into the oval office on september 12th, 2001 in the morning, president bush said this will not happen again. this will not happen again. and he was of single minded