Keep on digging, CNN. I bet you find that pony somewhere in there. In remarks unearthed from a 1998 symposium, Brett Kavanaugh took the ultimately banal position that the Constitution envisions Congress as the proper institution for investigating presidents, not independent counsels. CNN believes that while this is “consistent” with other public statements already known, it “raises new questions” about his confirmation.
And in newly unearthed video reviewed by CNN, Kavanaugh also implies that he believes there’s only one institution that should be allowed to investigate the conduct of a president: the United States Congress.
While the comments are consistent with Kavanaugh’s long-standing legal views, they raise new questions about whether the appeals court judge believes a president can be subjected to an investigation conducted outside of Congress — significant now that a federal investigation looms over Trump, legal experts say.
“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.”
So what? The position that sitting presidents can’t be indicted is hardly unique; it is in fact the long-standing position of the Department of Justice. The latest version of that opinion was promulgated by the Office of Legal Counsel in 2000, two years after Kavanaugh’s remarks, during the Clinton administration. However, the OLC first developed that policy in 1973, when Richard Nixon was under investigation, and which Congress used to argue for impeachment at the time. It’s widely accepted, enough so that Robert Mueller is said to be operating under the same understanding of the law.
If that’s the case, then Congress would have to be the actor of “the first instance,” as Kavanaugh puts it — unless CNN and Senate Democrats can think of another branch of government with the authority to act. In this 46-second clip, Kavanaugh is offering about the most mundane observation of constitutional process possible, and in fact doesn’t even say that independent counsels are illegitimate for other purposes. If an independent counsel can’t bring an indictment against a sitting president, then there’s no purpose to ICs that Congress can’t do on its own. And if sitting presidents can’t be indicted at all, then the only remedy is impeachment and removal by Congress, just as the Constitution indicates.
This is just another rehash of Wednesday’s CNN rehash of independent counsels and Morrison, in which CNN argued that Kavanaugh could use his vow to overturn Morrison as a way to shut down Mueller. Never mind that Morrison was mooted by Congress almost twenty years ago, and never mind that a wide consensus considers it a big mistake now. And once again, CNN is conflating independent counsels with special counsels, which exist under a very different law with more executive accountability. As Benjamin Wittes points out, Kavanaugh’s later thoughts on this topic support the idea of independent investigations of sitting presidents, when needed:
Kavanaugh, by contrast, made the then-unpopular case that some independent counsel law remained necessary: “future debates,” he wrote, “should not focus on whether a special counsel statute is necessary, but rather on the more pertinent questions of by whom and under what conditions a special counsel should be appointed.” He went on to sketch out what a healthier independent counsel law might look like—healthier as a matter of constitutional law, as a matter of policy and as a matter of democratic governance. While Congress did not take him up on writing this particular law, his specific proposal bears attention today by those who are interested in how Kavanaugh might respond to the Office of Special Counsel in the age of Trump. Three things in particular stand out.
The first is that the structure he describes looks a great deal like the regulatory structure under which Robert Mueller serves. Yes, there are differences. Kavanaugh proposed (cleverly, in my view) that an independent counsel be appointed by the president with the advice and consent of the Senate; Mueller, by contrast, was appointed by the acting attorney general. But the key point is that Mueller was not, as happened under the old independent counsel law, appointed by a panel of judges. In other respects, Mueller’s appointment closely tracks Kavanaugh’s proposal. Kavanaugh would have given the president discretion as to when to appoint a special counsel; Mueller was appointed at the discretion of Trump’s administration. Kavanaugh’s proposal would have allowed the president to remove the special counsel, with or without cause; the regulation under which Mueller serves permits his removal for cause only, but the regulation itself can be rescinded at any time. And Kavanaugh’s proposal would allow the attorney general to determine the special counsel’s jurisdiction, precisely what the acting attorney general did in Mueller’s case. In other words, Mueller looks a great deal like the type of special prosecutor Kavanaugh wrote an entire law review article to propose.
This does not bode well for, say, an embrace of Steven Calabresi’s recent argument against the constitutionality of the Mueller probe should the president’s lawyers bring such a claim before a Justice Kavanaugh.
Second, the article also makes a strong prudential case for independent investigations of the President and other high officials, given the inherent conflicts facing the attorney general in situations in which senior administration officials are investigative subjects. Kavanaugh made this argument at a time when, as noted above, the whole political culture was moving the other way. “Even the most severe critics of the current independent counsel statute concede that a prosecutor appointed from outside the Justice Department is necessary in some cases,” Kavanaugh writes. “Outside federal prosecutors are here to stay.” Critically, Kavanaugh’s proposed structural reforms to the independent counsel law were aimed not at weakening it but at shoring up the credibility and independence of the investigators against political attacks. Does this sound like someone who’s gunning for Mueller?
There is literally nothing in these forty-six seconds that suggest any action against Mueller, nor of any disagreement with longstanding DoJ policy. If anything, it shows Kavanaugh squarely in the mainstream of both Republican and Democratic DoJs. I doubt that’s the impression CNN plans to give, but it’s certainly the one left by Kavanaugh.
Update: Ronald Rotunda notes at Justia that the present special-counsel statute requires Mueller to abide by DoJ policy, which means this is a moot point entirely:
In addition, the present regulations require that Mr. Mueller must follow Justice Department rules and policies. In October 2000, during the waning days of President Clinton’s second term, the Justice Department’s Office of Legal Counsel (OLC), issued an Opinion that concluded “a sitting President is immune from indictment as well as from further criminal process.” The regulations that govern Mr. Mueller require him to follow the Department of Justice “rules and policies.” The OLC’s opinions are “controlling” on the Executive, so this regulatory independent counsel, unlike a statutory independent counsel or the Watergate regulatory counsel, cannot indict a sitting president, which is what my 1998 Opinion Letter concluded. If you don’t like that result, blame President Clinton.
Or the Constitution. YMMV.