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"The Supreme Court may well have to decide key legal and constitutional issues revolving around Donald Trump and his scandals." (Photo: MANDEL NGAN/AFP/Getty Images)

"The Supreme Court may well have to decide key legal and constitutional issues revolving around Donald Trump and his scandals." (Photo: MANDEL NGAN/AFP/Getty Images)

Courting Disaster: The Trouble With Brett Kavanaugh's Views of Executive Power in the Age of Trump

Standing up to a lawless President — ruling for the Constitution — is one of the top jobs of a Supreme Court justice

Cross-posted from the New York Daily News

“If the President does it, that means that it is not illegal.” So said Richard Nixon after his resignation.

Nixon left office in August 1974, just two weeks after a landmark U.S. Supreme Court ruling, U.S. vs. Nixon. The chief executive had argued he could not be investigated by a special prosecutor. He insisted his secret White House tapes were protected by executive privilege. He said the Supreme Court lacked the power even to hear the case.

But the justices disagreed. By a resounding unanimous vote, they ordered Nixon to obey a subpoena and turn over his tapes. Nixon’s own choice as chief justice, Warren Burger, wrote the opinion. The President, it said, is not above the law.

Standing up to a lawless President — ruling for the Constitution — is one of the top jobs of a Supreme Court justice. And at a time of scandal and investigation, the nomination of a new justice poses stark questions. Will Brett Kavanaugh, President Trump’s nominee, stand up to presidential abuses? Or will he roll over? With a supine Congress and a President who increasingly flouts the law, an independent and strong Supreme Court is more important than ever.

That’s why Kavanaugh’s views on this very issue have drawn increasing scrutiny. Any Trump nominee before a Republican Senate would tilt rightward. We know where they’d stand on Roe v. Wade and Citizens United. But of all the possible nominees, Kavanaugh has the longest record on the very issues of presidential power and executive abuse that are likely to rush to the fore in the near term.

It’s hard to avoid noticing that he was nominated by the same Donald Trump who attacks the FBI and Justice Department, rails against “witch hunts” and dangles pardons to potential witnesses. As Slate’s Dahlia Lithwick has written, Trump chose the justice most likely to say he could not be indicted. That will push the Mueller probe of Russian interference in the 2016 election to the center of the court debate.

But Kavanaugh’s views on this subject run deeper, and thus are more potentially troubling. Much of his glittering career has been devoted to the project of freeing the presidency from legal constraint.

Not at first, though. I remember hearing his name the first time when he was a top deputy to Whitewater independent counsel Kenneth Starr. I worked in the White House throughout those years. It is hard to fully capture the relentless, sensational, and, it felt to us, utterly partisan nature of the permanent investigative apparatus that was aimed at Bill Clinton.

A probe that started in 1993 looking at a long-ago land deal in Arkansas ended up five years later with the impeachment of the President over lying about his sexual relationship with an intern.

Kavanaugh investigated the suicide of a top White House lawyer, whom conservative conspiracy theorists insisted had been murdered. (It was, he concluded, a suicide.) He urged fellow prosecutors, according to historian Ken Gormley in the book “The Death of American Virtue,” to grill Clinton in almost pornographic detail about the precise nature of his sexual interactions with Monica Lewinsky.

Kavanaugh wound up being an author of the infamous Starr Report, which set out the details of the affair in leering, footnote-laden detail. Bob Woodward reported that the young lawyer wanted to omit the smut. But some of the legal theories were pretty lurid, too. Clinton could be impeached, the report argued, for trying to delay an interview with prosecutors, and for lying to the public. These amounted to obstruction of justice.

Impeachment for lying? Presidents obstructing justice? Let’s assume that Trump’s research team never told the boss about that one.

The episode is remembered as a partisan probe run amok. Kavanaugh quickly began to express second thoughts. He soon called for an end to the independent counsel law of the time, which had led to a swarm of prosecutors circling the White House.

In 1998, writing in the Georgetown Law Review, Kavanaugh wrote — correctly — that the question of whether a President could be indicted had not been resolved. He publicly said he thought the answer was no. He’s hardly alone in that view; in fact, it’s longstanding Justice Department policy. But Kavanaugh went further, urging Congress to pass a law ensuring that a sitting President could never stand criminal trial. That’s what the Constitution implied, he wrote.

Then he spent six years as a top aide to President George W. Bush. That administration’s guiding force was Vice President Dick Cheney, who once praised the presidency’s “monarchical notions of prerogative.”

Most unnerving was a law review article Kavanaugh wrote a decade ago, as Bush was finishing his term (it was published the next year). Stripped to its essentials, Kavanaugh’s article is a cogent brief for a presidency above the law.

He described traveling the world with the President, how important the job was, how unique its duties:

“Even the lesser burdens of a criminal investigation — including preparing for questioning by criminal investigators — are time-consuming and distracting. Like civil suits, criminal investigations take the President’s focus away from his or her responsibilities to the people. And a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.”

Kavanaugh proposed that Congress actually pass a law giving the President wide immunity. “We should not burden a sitting President with civil suits, criminal investigations or criminal prosecutions,” he explained. Not even investigations should touch the great man at the desk in the Oval Office.

Wouldn’t that leave the chief executive rather, um, free to go wild? The judge gave a glib response. “If the President does something dastardly, the impeachment process is available.”

True, as some have noted, Kavanaugh did not say the Constitution required this approach. He said Congress should pass a law. But he didn’t say the Constitution shouldn’t be read in this way, either. Plainly he thinks it would be the best outcome.

When it comes to the presidency and its power, this is far out of the mainstream of legal thinking. Since Watergate, we’ve understood that even Presidents can be caught up in criminal investigations, that the law requires multiple channels of accountability. At times this has led to the criminalization of politics, in which everything turns into a legal case, giving courts and prosecutors too much power.

Conservative activists have pushed the idea of a “unitary executive,” meaning that the President can hire, fire and direct everyone in the executive branch regardless of legal constraint.

But most of us have understood the lesson taught by history: it’s dangerous to let Presidents evade the law.

These are not just academic or philosophical concerns about a President being caught red-handed for, say, murder. The Supreme Court may well have to decide key legal and constitutional issues revolving around Donald Trump and his scandals.

To start, there is the imminent battle over whether a federal grand jury can subpoena the President to testify. Trump plainly does not want to answer Robert Mueller’s questions. Rudy Giuliani, one of the President’s lawyers, claims he has broad constitutional immunity from having to do so, because that’s what “the Founding Fathers” wanted. In the Nixon case, the Supreme Court required the President to obey a subpoena — but for documents, not in-person testimony.

If Mueller presses the matter, this could be a major Supreme Court case within months.

Then there are the civil suits against Trump, filed by Stormy Daniels and Summer Zervos. The Supreme Court ruled that Bill Clinton could be sued while in office, but predicted that it wouldn’t take much time or have much impact. (Oops.) If suits pile up against this President, it won’t be a surprise if the Supreme Court has to rule on whether they proceed.

If Trump fires Mueller, an idea he has floated multiple times, there could be legal challenges. A grand jury charged Nixon with being an unindicted co-conspirator in Watergate. Could it do the same to Trump? What about status of the special counsel — is it constitutional? Is he overreaching his authority?

And there’s the possibility, however remote, that the President would be indicted. Lawful? The Supreme Court would decide all these, and more.

Then there’s the scope of executive privilege, used to avoid answering questions. Kavanaugh, interestingly, once proposed that Congress pass a law to make it clear that Presidents could not invoke executive privilege except for national security.

Some have said that Kavanaugh should decline to hear these cases because he spoke out on these matters, or because Trump is under a cloud. But that seems unworkable. These don’t add up to bad legal ethics, but bad legal ideas. A Justice Kavanaugh would rule guided by this approach, for good or ill.

That’s why it is utterly vital for the Senate to grill the nominee and scour his record on these topics. This nomination fight takes place amid a crisis in our democracy. Trump’s conduct adds up to an assault on constitutional norms. How will each branch of government respond to that out-of-control executive?

In arguing to cloak the President in immunity from criminal probes, Kavanaugh says the job of accountability first and foremost belongs to Congress, even when Congress is controlled by Republicans with no stomach to challenge the President.

He’s right that many of these problems would be avoided if Congress did its job, asked questions, dug deep, and showed independence. When it comes to Trump, Congress has failed. When it comes to Kavanaugh, let’s hope it does its job far better.


© 2021 Brennan Center for Justice

Michael Waldman

Michael Waldman is President of the Brennan Center for Justice at NYU School of Law, a nonpartisan law and policy institute that focuses on improving the systems of democracy and justice.

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