As examination of Brett Kavanaugh’s record began, two disturbing items surfaced that buttress the likelihood that Trump selected Kavanaugh because he thought Kavanaugh would protect him. Observers had already identified as the shiny object that caught Trump’s attention Kavanaugh’s writings opposing subjecting sitting presidents to criminal investigation and prosecution. Recently two recordings surfaced that strengthen that possibility and give senators further reason not to confirm this nominee selected by a president already under serious investigation.
Two Supreme Court cases are central to criminal and impeachment proceedings against Trump. The first is U.S. v. Nixon, decided by a unanimous court 44 years ago this week, that ordered Nixon to comply with a trial subpoena for production of tape recordings of Oval Office conversations. Nixon produced the tapes on August 6, 1974 and three days later was forced to resign the presidency. Although Congress had already begun impeachment proceedings, the tapes revealed that Nixon had ordered the FBI not to investigate the Watergate break-in and sealed his fate.
Obviously, the case is very much in play in the slow-moving drama regarding Mueller’s possible pursuit of a grand jury subpoena to compel Trump to testify. It has been clear from the start of “negotiations” that Trump would never submit voluntarily to an interview with Mueller. The time is approaching when Mueller will have to decide whether Trump’s testimony is sufficiently important to warrant issuance of a subpoena. While Mueller surely would like to examine Trump, he may conclude that the ensuing lengthy legal battle is not worth the limited value of Trump’s testimony. Trump will dodge questions, suffer memory lapses, assert executive privilege, and maybe even take the Fifth Amendment in refusing to answer questions. None of that will advance the investigation. He’ll also lie, but that alone is not a good reason to question him.
Still, Mueller may conclude that he cannot wrap up the investigation without hearing from Trump. If so, Trump will resist and Nixon will stand as Mueller’s strongest authority. Trump will argue that Nixon involved a less intrusive subpoena for documents rather than a personal appearance by the president, which is far more burdensome on a busy chief executive (who has spent roughly one of five days in office at a Trump golf course). He’ll also argue that the Nixon subpoena demanded evidence for a trial, a more advanced step in the criminal process than a grand jury investigation. He’ll also, doubtless, argue that much of the testimony will be protected by executive privilege. He may argue that a president cannot be indicted while in office and, therefore, cannot be subjected to a criminal process that might lead to indictment. He may also argue that Nixon was decided incorrectly in that it failed to accord sufficient respect to the separation of powers and allowed the judiciary to intrude unduly into the sphere of the executive.
Nixon rejected the separation of powers argument and, while recognizing the existence of executive privilege, held that the demands of the criminal process outweighed the privilege, particularly in the absence of military or diplomatic secrets. It held that a generalized interest in the confidentiality of presidential communications does not outweigh the interest in due process and the fair administration of the criminal justice system. The case has long stood for the proposition that no person’s evidence is beyond the reach of the law.
But, lo and behold, a recording has emerged of Kavanaugh in a panel discussion suggesting that Nixon might have been wrongly decided because the court was caught up in the context of the times. Kavanaugh stated: “Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official. That was a huge step with implications to this day that most people do not appreciate sufficiently.”
That view might be dismissed simply as reflecting a desire to be provocative in a public discussion. Indeed, Kavanaugh appears to have accepted Nixon in other contexts. But Kavanaugh’s critique of Nixon fits too well with his embrace of the unitary executive, a view of the constitution that creates a powerful silo for executive power that the other branches may not breach. His rejection of Nixon would be music to Trump’s ears in a battle to quash a Mueller subpoena.
The second central case is Morrison v. Olson, in which the court affirmed the constitutionality of the independent counsel law. As part of Trump’s challenge to a subpoena, he will challenge the lawfulness of Mueller’s appointment. While the independent counsel statute at issue in Morrison and the regulations pursuant to which Rod Rosenstein appointed Mueller differ in important ways, Morrison is key in establishing the legitimacy of special prosecutors.
Lo and behold, a recording has surfaced in which Kavanaugh says he would like to overrule Morrison. Indeed, he suggests that it has already been overruled in effect. Well, it hasn’t. It remains good law, decided by the court with only Justice Scalia dissenting. Kavanaugh likes Scalia’s dissent, which embraces a reading of the unitary executive on steroids, a most Trumpian view.
The statute at issue in Morrison required the attorney general to seek the appointment of an independent counsel from a three-judge panel, who would select the counsel, but would not exercise day-to-day oversight over her work. The counsel could only be removed for cause. The current regulations authorize the attorney general to make the appointment and to retain control over the special counsel’s ultimate decisionmaking, while requiring cause for firing. The regulations can survive even if Morrison does not, but their chances of survival are greatly enhanced by a healthy Morrison.
Kavanaugh’s views on these two cases give the Senate much to explore. Having suggested that each case was wrongly decided, Kavanaugh cannot now refuse to discuss directly the merits of each case or of the theory of expansive executive power that animates his criticism. That discussion is likely to demonstrate that Kavanaugh cannot be expected to provide a robust check on the president who may have selected him for that very reason.