Ka­vanaugh won’t pro­tect the spe­cial coun­sel

The Charlotte Observer (Sunday) - - Opinion - BY RICHARD BLU­MEN­THAL Blu­men­thal is a U.S. se­na­tor from Con­necti­cut.

Re­cent days have left many Amer­i­cans with a burn­ing ques­tion: Does Vladimir Putin have some­thing on Pres­i­dent Don­ald Trump? The in­ves­ti­ga­tion led by spe­cial coun­sel Robert Mueller III of­fers the most re­al­is­tic op­por­tu­nity to an­swer that ques­tion. But the like­li­hood of that hap­pen­ing may have taken a hit when the pres­i­dent nom­i­nated to the Supreme Court some­one whose writ­ing sug­gests that he thinks pres­i­dents should be able to fire spe­cial coun­sels for any rea­son or no rea­son at all.

The pres­i­dent may also take com­fort from Judge Brett Ka­vanaugh’s ob­ser­va­tion dur­ing a 1999 panel dis­cus­sion that United States v. Nixon - the unan­i­mous, land­mark 1974 Supreme Court opin­ion forc­ing Pres­i­dent Richard M. Nixon to turn over se­cretly recorded White House tapes - may not be good law. Even more un­set­tling was his spec­u­la­tion that Nixon might de­serve to “be over­ruled on the ground that the case was a non­jus­ti­cia­ble in­tra­branch dis­pute.”

Ka­vanaugh was thus lend­ing cre­dence to the Nixon White House’s ar­gu­ment that be­cause the Jus­tice Depart­ment is part of the ex­ec­u­tive branch, it has no au­thor­ity to com­pel the pres­i­dent to re­lease in­for­ma­tion rel­e­vant to a crim­i­nal case. Un­der this the­ory, pres­i­dents would be free to re­ject all re­quests for in­for­ma­tion.

Ka­vanaugh’s sup­port­ers have two re­sponses to these con­cerns. They note that he has also said good things about the Nixon rul­ing. That’s true, but Ka­vanaugh has not com­mit­ted to up­hold­ing the prece­dent.

The judge’s al­lies also ar­gue that his past writ­ing for law jour­nals about mat­ters such as the nowl­apsed in­de­pen­dent coun­sel law sim­ply re­flect Ka­vanaugh’s per­sonal views on pol­icy - not his be­liefs about con­sti­tu­tional law. Ac­cord­ing to this ar­gu­ment, Ka­vanaugh might pre­fer that Congress in­su­late the pres­i­dent from ac­count­abil­ity, but he would cer­tainly never use a Supreme Court seat to achieve that goal.

Still, what are we to make of his 1998 paper for the Georgetown Law Jour­nal, “The Pres­i­dent and the In­de­pen­dent Coun­sel,” where he claimed that a statute pre­vent­ing pres­i­dents from fir­ing in­de­pen­dent coun­sels for no good rea­son “strikes many com­men­ta­tors as un­con­sti­tu­tional”? What mes­sage was he send­ing in 2016 when speak­ing at the con­ser­va­tive Amer­i­can En­ter­prise In­sti­tute, when he said that he hoped to “put the fi­nal nail” in the in­de­pen­dent-coun­sel prece­dent?

That statute dif­fered from to­day’s spe­cial coun­sel reg­u­la­tions, but the cen­tral ob­jec­tion to the ear­lier statute was that it lim­ited the pres­i­dent’s abil­ity to fire spe­cial coun­sels with­out cause.

Even if Ka­vanaugh’s thoughts on pres­i­den­tial ac­count­abil­ity were merely pol­icy po­si­tions, that would be no small thing. Cer­tainly, judges put aside some of their pol­icy views when rul­ing on cases. But judges rec­og­nize that cer­tain pol­icy judg­ments help in­ter­pret the Con­sti­tu­tion. If a judge be­lieves the 14th Amend­ment was writ­ten to com­bat racial in­equal­ity, the judge’s pol­icy de­ter­mi­na­tion that a statute will ex­ac­er­bate racial in­equal­ity may be di­rectly rel­e­vant in a 14th Amend­ment case.

Ka­vanaugh has made clear which pol­icy de­ci­sions he be­lieves were made by the Con­sti­tu­tion’s framers and are there­fore rel­e­vant to con­sti­tu­tional law. He re­peat­edly quotes Alexan­der Hamil­ton and the Fed­er­al­ist Papers to show - un­con­vinc­ingly - that the men who drafted the Con­sti­tu­tion would have shared his con­cerns about in­ves­ti­ga­tions of the pres­i­dent.

When it comes to ad­dress­ing pres­i­den­tial ac­count­abil­ity, Ka­vanaugh has given clear sig­nals about his be­liefs. Some ob­servers might find it re­as­sur­ing to think that Ka­vanaugh would not rule as his writ­ings sug­gest. That would be a mis­take. It would be far wiser to lis­ten to the mes­sage that he has sent for decades - and to do so be­fore it’s too late.


Ka­vanaugh’s be­liefs about the spe­cial coun­sel are clear.

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