Kavanaugh: Watergate Decision Wrong, No Independent Counsels

Brett Kavanaugh watches with his family as President Donald Trump signs his nomination. Photo by Dan Scavino Jr.

Brett Kavanaugh moved closer to confirmation this week as he spoke with Senators and filed a questionnaire to the Senate Judiciary Committee.  (Axios)

His chances of being confirmed are excellent, as the Republicans currently hold a majority in the Senate and some Democrat Senators are facing re-elections in states where support for Trump’s nominee remains high.  Senate Majority Leader McConnell has used the scheduling process as a political tool to threaten the Democrats against excessively stalling.  Democrat Senators have been filing requests for thousands of documents and then demanding time for a full document review, in an effort to delay the votes.  In response, McConnell has suggested the vote may occur shortly before the midterm election, as a way to undermine Democrats in traditionally conservative states. (Politico)

The delaying tactics are bearing fruit, however.  Not in any way that would seem to threaten Kavanaugh’s confirmation, but in a way that should concern anyone who advocates against government corruption.  Two of Kavanaugh’s positions have already been provided from the pages filed with the questionnaire:

From the AP:

“But maybe Nixon was wrongly decided — heresy though it is to say so. 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…Maybe the tension of the time led to an erroneous decision,” Kavanaugh said in a transcript of the discussion that was published in the January-February 1999 issue of the Washington Lawyer.

At another point in the discussion, Kavanaugh said the court might have been wise to stay out of the tapes dispute. “Should U.S. v. Nixon be overruled on the ground that the case was a nonjusticiable intrabranch dispute? Maybe so,” he said.

The AP story then provided an example of Kavanaugh seeming to support the Nixon decision:

Kavanaugh allies pointed to a recent, more favorable assessment of the Nixon case. “Whether it was Marbury, or Youngstown, or Brown, or Nixon, some of the greatest moments in American judicial history have been when judges stood up to the other branches, were not cowed, and enforced the law. That takes backbone, or what some call judicial engagement,” Kavanaugh wrote in a 2016 law review article in which he referred to several landmark Supreme Court cases.

The issue here is that the two positions are addressing different topics.  The first is addressing the Constitutionality of the courts investigating a President; the second is addressing the general notion of courts remaining strong.  One can promote a strong court while placing key powers off-limits, such as the power of the courts to investigate criminal actions of the President.

Then were was a C-Span video of Kavanaugh presenting the idea of an independent counsel as inherently invalid.  From CNN:

“The implication is that Congress has to take responsibility for overseeing the conduct of the president in the first instance,” Kavanaugh said at a 1998 event at the Georgetown Law Center in Washington when asked about his view that a sitting president cannot be indicted. “That’s the role I believe the Framers envisioned, and that’s the role that makes sense if you just look at the last 20 years.”
Kavanaugh then added: “It makes no sense at all to have an independent counsel looking at the conduct of the President. Now to be sure, most criminal investigations are going to involve multiple subjects, so we still need a criminal investigation ongoing. But when it comes to looking at the conduct of the President, it has to be the Congress. Congress has to get in this game and not — stop sitting on the sidelines.”
The video from C-Span can be found here.
To be certain, an independent counsel does provide a degree of separation from Congress.  That said, the independent counsel was created for reasons.  Congress, at its best, delays actions through Parliamentary procedures and is populated by people who are inexpert in investigations and prosecutions.  Current proceedings typically take years whenever even low-level government functionaries are involved, and when they do investigate there is much smoke and no fire.  To expect them to directly investigate a President is to effectively absolve a President from all criminal behavior.

Because of the reflexive rejection of any possibility that Trump or Republicans in general may be corrupt, even in the face of evidence, that is currently being seen from a majority of the Republican base there is little chance that these revelations will damage Kavanaugh’s nomination progress.  Because of the similar views demonstrated by the Democrat base toward their elected officials, it is unlikely the statements will generate sufficient outrage to convince Democrats to take risky stances.  But the positions are there, and provide strong insight into how firmly Kavanaugh believes that the President should be immune from prosecution.

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About AlienMotives 1992 Articles
Ex-Navy Reactor Operator turned bookseller. Father of an amazing girl and husband to an amazing wife. Tired of willful political blindness, but never tired of politics. Hopeful for the future.