Cold Watergate
Kavanaugh’s sound special-counsel doubts
SEN. Chuck Schumer is opening a new line of attack against President Trump’s nominee to the Supreme Court. He thinks a Justice Brett Kavanaugh might vote to free Trump from the clutches of the special prosecutor, Robert Mueller.
So here’s something you won’t often read from your crusty columnist. I think Schumer is right. Kavanaugh’s written record and judicial philosophy suggest he takes a dim view of independent and special prosecutors.
Where I disagree with Schumer is that this is precisely a reason for the Senate to put Kavanaugh on the Supreme Court in the first place. Special and independent counsels have wreaked havoc with our modern presidents for too long.
Such prosecutors helped destroy one presidency (Nixon’s) and hobble two others (Clinton’s and Trump’s). Guilty though Nixon may have been, I believe, the constitutional Framers would have been horrified at the refusal to leave things to the impeachment process. “We the people” be damned. What set Schumer off was the disclosure of Kavanaugh’s remarks in a symposium in 1999. Kavanaugh, not yet a federal judge, remarked that maybe the Supreme Court erred in the case that doomed Nixon’s presidency.
That case, called US v. Nixon, was decided in 1974 during the Watergate scandal. The special prosecutor, Leon Jaworski, wanted reels of tape secretly recorded (on Nixon’s own say-so) inside the Oval Office.
The federal judge on the case, John J. “Maximum John” Sirica, issued a subpoena ordering Nixon to deliver the tapes to the court. Nixon appealed. The Supreme Court ruled against the president, 8-0.
One of the tapes turned out to contain a so-called “smoking gun.” It was a recording of the president plotting, albeit for what he thought was good reason, to call off the FBI from the Watergate case.
What a bombshell that was. The Supreme Court decision forcing Nixon to release the tapes was handed down on July 24, 1974. The president’s support in Congress collapsed overnight. Sixteen days later, Nixon resigned. That rush to judgment took millions of voters for granted. The 1972 election, coming during the Vietnam War, pitted Nixon, the incumbent, against an apostle of retreat, Sen. George McGovern. Nixon won in a historic landslide.
He prevailed in every state save for the People’s Republic of Massachusetts. The vote in the Electoral College was 520 to 17. Only Washington, Monroe, FDR and Reagan beat him.
One would think such a mandate would engender some humility in our judges and prosecutors. Particularly when the Constitution empowers only the House of Representatives to investigate a president, impeach him and send him to trial in the Senate.
Yet the Supreme Court backed Jaworski unanimously.
“Maybe Nixon was wrongly decided, heresy though it is to say so,” Kavanaugh suggested years later at that symposium in Washington.
His key point was that it was constitutionally illogical for even a special prosecutor to attack a president to whom he was subordinate.
“Maybe the tension of the time led to an erroneous decision,” he offdered. He called it “a huge step with implications to this day.”
As a circuit judge, Kavanaugh has done nothing to defy US v. Nixon. How could he? Yet his academic writing suggests he has been of two minds about special prosecutors. “Outside counsels are here to stay,” he once wrote in the Georgetown Law Journal.
Kavanaugh warned, though, of a “fundamental flaw” with the independent-counsel statute then on the books. It could make the president and subordinate counsel “adversaries.” That certainly sounds prophetic in the time of Mueller.
Kavanaugh proposed Congress pass a law making it clear that the president “is not subject to indictment” while “he serves as president.” He wanted statutes of limitation suspended for any president in office so that he could be prosecuted later.
Kavanaugh’s writing suggests he came to those views the hard way — working for Kenneth Starr, the independent counsel who’d gone after President Clinton. Starr got Clinton impeached, only to see him acquitted in the Senate.
Congress never passed the law Kavanaugh has plugged for. Could he force the issue on the Supreme Court? Not alone. His writing, though, is so erudite and persuasive that Schumer has reason to worry. And the Senate to confirm Kavanaugh as soon as it can.