As is clear from his well-documented view of executive power (and his obsequious performance on the night President Trump nominated him), Supreme Court hopeful Brett Kavanaugh believes in showing great deference to the president of the United States.
But old comments unearthed this weekend illustrate just how expansive and atypical his opinions might be.
The Associated Press reported on Saturday that Kavanaugh once said that the Supreme Court’s 8-0 United States vs. Nixon decision in 1974, which forced President Nixon to disclose his infamous Watergate tapes and hastened the end of his presidency, may have been a mistake.
The potential justice made the comments during a roundtable discussion with other lawyers way back in 1999, in the aftermath of President Bill Clinton’s impeachment — an episode in which Kavanaugh played a key role.
“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 Washington Lawyer article was rediscovered when Kavanaugh submitted thousands of pages of documents to the Senate Judiciary Committee last week, which were released publicly on Saturday.
During the Clinton investigation, Kavanaugh, who worked for Independent Counsel Kenneth Starr, wrote briefs that laid out arguments for the president’s impeachment. But in the years afterward, he completely recalibrated his views on investigations that involve the president, and has since advanced a vision of almost unlimited executive leeway on such matters. In 2009, he wrote that Clinton should never have been investigated while in office, because indicting a sitting president “would ill serve the public interest, especially in times of financial or national-security crisis.”
If Special Counsel Robert Mueller tries to compel President Trump to testify as part of the Russia investigation, and the two sides meet at the Supreme Court, there is little doubt who Kavanaugh would favor.
The Nixon remarks drew rebukes from Democrats who are looking for any angle they can find to sink Kavanaugh’s nomination, and had already zeroed in on his view of presidential power.