Old mystery: Can Kavanaugh get 50 votes for confirmation?
New mystery: Can Republicans confirm Kavanaugh before Trump withdraws the nomination?
Lord only knows what this story amounts to. There are not one but two layers of obscurity to it. First, Kavanaugh is obviously reluctant to tip his hand, even in private chitchat with the Senate, about how he might rule as a Supreme Court justice on a matter of momentous importance like Russiagate. Second, the senators he’s meeting with don’t want to betray his confidence by sharing details of their conversation, particularly when those details might set off a media feeding frenzy that complicates his confirmation.
We can guess at what he said to inspire this story, but all we’re doing is guessing.
Supreme Court nominee Brett Kavanaugh has privately told senators he views the appointment of a special counsel by the Justice Department as appropriate, a comment that could shed new light about his views of Robert Mueller’s investigation into Donald Trump’s presidential campaign, according to sources familiar with the meetings…
Sen. Jeff Flake, a GOP member of the Senate Judiciary Committee who has been a fierce Trump critic and a defender of Mueller, discussed with Kavanaugh his career working with the independent counsel Ken Starr, who investigated the Clinton White House. Flake later told CNN that he doesn’t believe that Kavanaugh would view Mueller as unconstitutional.
After noting some senators have expressed concerns that Kavanaugh would be skeptical about the legality of the Mueller probe, Flake said: “I don’t share those concerns.”
Say, isn’t Kavanaugh a well-known critic of the old independent counsel model? What’s he doing turning around now and (allegedly) saying that Mueller’s appointment is “appropriate”? Ed and I have each written about that, but the short version is that the two positions are constitutionally distinct in an important way. The independent counsel was appointed by a panel of judges; conservatives like Antonin Scalia believed it scrambled separation of powers to have the power of prosecution vested in someone who wasn’t accountable to the executive, as the Constitution requires. But the independent counsel model was scrapped years ago, replaced by the special counsel model under which Mueller operates. In the new model, the special counsel is indeed entirely within the executive branch. He’s appointed by the attorney general (or deputy attorney general in this case) and can be fired by the president for cause. The constitutional defect is cured.
A few weeks ago Benjamin Wittes described a law review article written by Kavanaugh in 1998 after he left Ken Starr’s office, offering an alternative to the independent counsel model of the time. Kavanaugh’s proposal looked a lot like the model we have now: He thought an independent-ish counsel could be useful in some circumstances (an unpopular opinion in the Starr era) but wanted the job filled by the president and confirmed by the Senate, and he wanted the president to retain power to fire the person he’d appointed for any reason. As long as the counsel was accountable to the executive there was no constitutional problem. Fast-forward 20 years and it’s no wonder that soon-to-be Justice Kavanaugh finds Mueller’s appointment “appropriate.” He probably made this exact point to Flake or whomever, that his skepticism about the independent counsel had to do with a separation-of-powers issue that no longer obtains. Everything he’s written on this issue in the past points towards him tolerating Mueller’s role now.
But there’s good news for Trump too. Note again, per Wittes, that Kavanaugh thought the president should have the power to fire the sort of special counsel he imagined in 1998 for any reason, with or without cause. That makes sense, as it’s part and parcel of the special counsel’s accountability to the president. I mention that just because if Trump were to drop the axe on Mueller and Congress tried to intervene by passing a statute shielding the special counsel from being fired without cause, there’s good reason to think Kavanaugh would vote to strike that law down. It’d be another case of a branch trying to muscle in on the president’s power over prosecutions. Kavanaugh’s not going to oust Mueller for Trump on separation-of-powers grounds, but if Trump decides to oust Mueller, Kavanaugh’s probably not going to stand in his way either.
And it follows, as several experts suggested to CNN, that if Kavanaugh believes Mueller ultimately answers to Trump then Kavanaugh probably also believes that Mueller can’t enforce a subpoena against Trump. The prosecution power belongs to the president, not his deputies. Even the independent-ish ones.
CNN’s story goes on to say that Kavanaugh has been hinting (again, whatever that means) in conversations that he believes the president can’t be prosecuted while in office. If you want to put POTUS on trial, you either impeach and remove him first or you wait until he’s out of office and then go after him. No surprise there: All sorts of people hold that view, allegedly including Bob Mueller himself. It’s the Justice Department’s own policy, in fact, per an OLC opinion from 2000. Per scholar Ronald Rotunda, Mueller would be bound by that policy even if disagreed with it. Kavanaugh’s (alleged) view of the subject derives directly from his view of the prosecution power. If the Justice Department is accountable to the president himself then the president can’t be prosecuted without his consent.
And presumably the president can’t be indicted either, even if that indictment were stayed until the end of his time in office. I’ve been wondering about that lately as a sort of hybrid option for Mueller just in case he thinks probable cause exists to believe that Trump obstructed justice. Typically he’s said to have only two choices, either indicting and prosecuting Trump — which is a nonstarter, per the OLC opinion I just mentioned — or simply accusing Trump informally and referring the matter to the House, along with the evidence he’s gathered, for impeachment. What about a third option, though, in which Mueller secured an indictment of the president but then declined to proceed with the prosecution any further on grounds that the president can’t be tried? A standing indictment would dial the pressure on the House to impeach Trump way, way up. Trump would be dogged for the rest of his presidency by the fact that he’s been formally accused of a crime in federal court. It’d be a political groin punch.
Justice Kavanaugh would rule, I take it, that the president can quash that indictment at any time. If the prosecution power ultimately belongs to him then he has final say on what to do about the indictment. As a political matter, though, just the fact that the indictment was filed at all, even temporarily, would be a devastating blow as forcing Trump to quash his own indictment would make him look insanely corrupt. For Mueller his course of action would be an ethical question, I assume. Does he believe in good faith that he lacks the constitutional authority to indict the president, even if probable cause exists? If so, then how can he do it, even expecting that Trump will quickly step in and quash it?