The president may also take comfort from Judge Brett M. Kavanaugh’s observation during a 1999 panel discussion that United States v. Nixon — the unanimous, landmark 1974 Supreme Court opinion forcing President Richard M. Nixon to turn over secretly recorded White House tapes — may not be good law. Even more unsettling than Kavanaugh’s skepticism on that score was his speculation that Nixon might deserve to “be overruled on the ground that the case was a nonjusticiable intrabranch dispute.”
Kavanaugh was thus lending credence to the Nixon White House’s argument that because the Justice Department is part of the executive branch, it has no authority to compel the president to release information relevant to a criminal case. Under this theory, presidents would not only be free to reject burdensome, unfair or otherwise problematic requests for information; they would also be free to reject all requests for information.
Kavanaugh’s supporters have two responses to these concerns. They note that he has also said good things about the Nixon ruling. That’s true, but Kavanaugh has not committed to upholding the precedent. His comments raise questions about his current thinking that must be fully answered — in public.
The judge’s allies also argue that his past writing for law journals about matters such as the now-lapsed independent counsel law simply reflect Kavanaugh’s personal views on policy — not his beliefs about constitutional law. According to this argument, Kavanaugh might prefer that Congress insulate the president from accountability, but he would certainly never use a Supreme Court seat to achieve that goal.
Still, what are we to make of his 1998 paper for the Georgetown Law Journal, “The President and the Independent Counsel,” where he claimed that a statute preventing presidents from firing independent counsels for no good reason “strikes many commentators as unconstitutional”? What message was he sending in 2016 when speaking at the conservative American Enterprise Institute, when he said that he hoped to “put the final nail” in the independent-counsel precedent?
That statute differed from today’s special counsel regulations, but the central objection to the earlier statute was that it limited the president’s ability to fire special counsels without cause.
Even if Kavanaugh’s thoughts on presidential accountability were merely policy positions, that would be no small thing. Certainly, judges put aside some of their policy views when ruling on cases. A judge who believes that Social Security is bad fiscal policy is unlikely to invalidate the program based on that view alone.
But judges recognize that certain policy judgments help interpret the Constitution. If a judge believes the 14th Amendment was written to combat racial inequality, the judge’s policy determination that a statute will exacerbate racial inequality may be directly relevant in a 14th Amendment case.
Kavanaugh has made clear which policy decisions he believes were made by the Constitution’s framers and are therefore relevant to constitutional law. He repeatedly quotes Alexander Hamilton and the Federalist Papers to show — unconvincingly — that the men who drafted the Constitution would have shared his concerns about investigations of the president.
In 2016, Kavanaugh wrote that he would have invalidated the structure of the Consumer Financial Protection Bureau to “ensure accountability” — the exact problem he associated with the existence of independent counsels.
When it comes to addressing presidential accountability, Kavanaugh has given clear signals about his beliefs. Some observers might find it reassuring to think that Kavanaugh would not rule as his writings suggest. That would be a mistake. It would be far wiser to listen to the message that he has sent for decades — and to do so before it’s too late.