Will comments made two years ago by Brett Kavanaugh about his desire to “put a nail through” a Supreme Court precedent put his confirmation in danger? Er … no, not really, although CNN seems pretty excited by the prospect. Not only does it involve stare decisis, but they frame it in terms of the special-counsel probe run by Robert Mueller, a hot-button issue for Senate Democrats:
— CNN (@CNN) July 18, 2018
Judge Brett Kavanaugh two years ago expressed his desire to overturn a three-decade-old Supreme Court ruling upholding the constitutionality of an independent counsel, a comment bound to get renewed scrutiny in his confirmation proceedings to sit on the high court.
Speaking to a conservative group in 2016, Kavanaugh bluntly said he wanted to “put the final nail” in a 1988 Supreme Court ruling. That decision, known as Morrison v. Olson, upheld the constitutionality of provisions creating an independent counsel under the 1978 Ethics in Government Act — the same statute under which Ken Starr, for whom Kavanaugh worked, investigated President Bill Clinton. The law expired in 1999, when it was replaced by the more modest Justice Department regulation that governs Special Counsels like Mueller.
The comments are certain to get new attention amid his confirmation proceedings given that President Donald Trump and his campaign remain under investigation by special counsel Robert Mueller — and alongside the skepticism Kavanaugh previously expressed over whether a sitting president can be indicted.
This is silly for a couple of reasons. The law considered in Morrison hasn’t existed for almost twenty years. That’s probably why Kavanaugh felt comfortable sharing that as a precedent that wouldn’t survive a stare decisis test, because it likely will never come up to the Supreme Court again. The existing law that replaced it, under which Mueller’s appointment took place, addressed the concerns that were raised by Antonin Scalia in his prophetic dissent in Morrison.
But we don’t even have to extrapolate from that, because this issue has already been raised in the media when outlets discovered his written comments on the topic of investigations and special counsels. More than a week ago, Bloomberg’s Noah Feldman effectively debunked the idea that Kavanaugh would rule Mueller’s probe unconstitutional:
A third implication is that Kavanaugh may not accept the late Justice Antonin Scalia’s view that the Constitution bars the appointment of an independent counsel. This is subtle, but stick with me.
In the 1998 article, Kavanaugh called for changes in the independent counsel statute, but said that having some independent counsel was useful. That means that at the time, he believed there could be a constitutional independent counsel statute.
Kavanaugh’s proposed law from 2008 also wouldn’t be strictly necessary if there were no independent counsel, because the president could protect himself from indictment. Scalia would not have needed such a law protecting the president, because he thought the Constitution did not allow for independent counsels.
Thus Kavanaugh thinks Starr’s investigation was constitutional.
Lawfare’s Benjamin Wittes was more direct:
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?
In other words, not only is CNN’s scoop a rehash, it’s going to lead Senate Democrats into a cul-de-sac. If they press him to name other precedents he’d overturn on the basis of this clip, Kavanaugh will remind them that Congress mooted Morrison before he ever took his seat on the appellate court anyway, so it’s not going to be an issue for him when deciding cases. If they use that as an argument that he’d undo Mueller’s appointment, Kavanaugh will make them look foolish for doing so.
In trial terms, it’s been asked and answered. Move on.