Kavanaugh once suggested maybe the Supreme Court got it wrong on Nixon

[Leroy N. Soetoro]

https://www.vox.com/policy-and-politics/2018/7/22/17600344/kavanaugh-
watergate-executive-power-nixon

Supreme Court nominee Brett Kavanaugh’s views on presidential powers are
not helping those concerned about the integrity of the Russia
investigation sleep better at night. The latest development: the judge’s
suggestion many years ago that the Supreme Court might have gotten it
wrong when it compelled President Richard Nixon to turn over the Watergate
tapes.

In the trove of documentation Kavanaugh turned in to the Senate Judiciary
Committee as part of the confirmation process is a 1999 roundtable
discussion where Kavanaugh floated the idea that maybe the United States’
highest court made a mistake in 1974. That’s the year it ruled unanimously
in United States v. Nixon that the president had to hand over to a federal
district court the tape recordings and other subpoenaed materials tied to
the Watergate break-in. Mark Sherman at the Associated Press was the first
to report the comments.

Kavanaugh’s belief in the importance of executive power is already under
scrutiny, especially in light of special counsel Robert Mueller’s ongoing
investigation and the possibility that President Donald Trump could be
subpoenaed or, less likely, indicted. As Vox’s Jen Kirby points out, the
Supreme Court could wind up hearing some element of the Russia
investigation, and there’s a possibility Kavanaugh could be one of the
justices to decide on the matter.

In a transcript of a roundtable discussion published in the January-
February 1999 issue of the Washington Lawyer on attorney-client privilege,
Kavanaugh suggested that the Nixon case might have been “wrongly decided.”
Per the AP, he said:

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.

At another point, he said perhaps the court should have stayed out of the
dispute altogether.

It’s not necessarily an open-and-shut case that Kavanaugh disagrees with
the Supreme Court’s 8-0 decision on the Nixon tapes.

Bloomberg points out that in 1998, Kavanaugh in an article called on
Congress to “codify the current law of executive privilege,” including the
Nixon decision. And in a 2016 law review article, he cited the Nixon case
among examples of the “greatest moments in American judicial history” when
judges “stood up to the other branches, were not cowed, and enforced the
law.”

Still, his 1999 comments in the Washington Lawyer roundtable raised
eyebrows.

Harvard law professor and constitutional scholar Laurence Tribe in a tweet
called them “deeply alarming.” University of Texas Steve Vladick said it
was a “big deal” and could have implications for Mueller.


Laurence Tribe
?
@tribelaw
For those who see the Nixon tapes case as a triumph for the rule of law,
this #Kavanaugh statement and the underlying analysis are deeply alarming
— more so than his article urging Congress to shield sitting presidents
from investigation and
prosecution:https://www.apnews.com/amp/3ea406469d344dd8b2527aed92da6365?__
twitter_impression=true …

3:31 AM - Jul 22, 2018
https://storage.googleapis.com/afs-
prod/media/media:f74c58ee92bc4cc3b03f67609ce75300/800.jpeg
Kavanaugh: Watergate tapes decision may have been wrong
WASHINGTON (AP) — Supreme Court nominee Brett Kavanaugh suggested several
years ago that the unanimous high court ruling in 1974 that forced
President Richard Nixon to turn over t

apnews.com
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Steve Vladeck
?
@steve_vladeck
This is a big deal.

If Judge Kavanaugh thinks Nixon is wrongly decided (on justiciability),
he’s effectively arguing that a quasi-independent prosecutor in the
executive branch can’t sue to enforce a subpoena against a sitting
President.

That would surely cover Mueller, too...

Mark Sherman
?
@shermancourt
Replying to @shermancourt
UPDATED with story on Kavanaugh questioning outcome of 8-0 Watergate tapes
case in 1974 that forced Nixon to hand over Oval Office recordings and led
to his resignation.
https://apnews.com/3ea406469d344dd8b2527aed92da6365/High-court-nominee-
gets-started-answering-questions …

3:12 PM - Jul 21, 2018 · Austin, TX
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This isn’t the first time Kavanaugh’s view of executive power has raised
eyebrows
In the 1990s, Kavanaugh worked on independent counsel Ken Starr’s
investigation of President Bill Clinton, an aggressive probe that started
off with a land deal and ended with a recommendation he be impeached for
lying about an affair with Monica Lewinsky.

But after serving in President George W. Bush’s administration and getting
an up-close look at the presidency, Kavanaugh’s views changed — now he
believes a sitting president shouldn’t be investigated at all.

In an article for the Minnesota Law Review in 2009, Kavanaugh wrote that
Congress should pass a law exempting the president from criminal
prosecution and investigation while in office, including from questioning
by criminal prosecutors or defense lawyers.

“I believe that the President should be excused from some of the burdens
of ordinary citizenship while serving in office,” Kavanaugh wrote. “We
should not burden a sitting President with civil suits, criminal
investigations, or criminal prosecutions.”

He warned that indicting a sitting president and putting him on trial
would “cripple the federal government.” He specifically expressed regret
about the Clinton probe and suggested the president perhaps could have
“focused on Osama bin Laden” had he not been distracted by investigations.

Kavanaugh’s assertions have alarmed those worried about the integrity of
the Mueller investigation and, more broadly, many of President Trump’s
legal entanglements. Vox’s Andrew Prokop recently explained the dilemma:

Now, this is in the context of calling for Congress to change existing law
— not for the Supreme Court to interpret it differently. However, these
beliefs and opinions could well influence how Kavanaugh would rule on the
major topics related to civil or criminal investigations that do end up
reaching the Supreme Court.

And these are topics of enormous importance to Trump, who’s facing not
just the Mueller probe over Russian interference with the 2016 election,
but a civil suit over his foundation and a defamation suit from Summer
Zervos, who has said Trump sexually assaulted her.

With the discovery of his 1999 remarks, Kavanaugh just gave onlookers
another reason to worry.


--
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