Donald Trump’s Supreme Court Justice nomination, Judge Brett Kavanaugh, is coming under fire for comments he made two years ago. Kavanaugh said at the time that he wants to overturn a Supreme Court ruling that upholds the constitutionality of an independent counsel.
Not to be confused with Robert Mueller’s Special Counsel, the independent counsel was created under the 1978 Ethics in Government Act. Ken Starr used the court ruling to launch his investigation into Bill Clinton.
CNN notes that the original law expired in 1999 and was replaced by a “more modest” Justice Department regulation which now governs special counsel involvement in investigations. At the time, Kavanaugh said he wanted to put the “final nail in the coffin” of the law.
The troubling comment could signal the judge’s hopes of ending the Mueller investigation by deeming the counsel to be unconstitutional. However, Mueller and his team work directly for the Justice Department which operates under a separate set of rules compared to the independent counsel.
The original ruling, offered up in Morrison v. Olson, upheld the constitutionality of provisions creating an independent counsel.
The judge’s comments were made at an American Enterprise Institute event in March 2016. When asked about a specific case involving the independent counsel Kavanaugh said, “Actually, I’m going to say one. Morrison v. Olson. It’s been effectively overruled, but I would put the final nail in.” His comments were captured in a video that has recently resurfaced.
What This Means For Robert Mueller’s Team
While Mueller reports directly to the Justice Department and can’t be removed without “good cause” the overturning of the Morrison case could lead to additional scrutiny over whether Mueller’s team are working within the constructs of the U.S. Constitution.
The original 1988 ruling clearly states that Congress has the power to create an “independent investigative mechanism within the executive branch” while removing control of that investigation from the President of the United States.
An appeals court attempted to overturn Morisson v. Olson but the Supreme Court upheld the law, noting that it “attempted to remove the separation of powers for Congress” when creating checks and balances against the POTUS. The only dissent on the case came from Justice Antonin Scalia who argued that it was unconstitutional for any executive branch officer to become insulated form the purvey of presidential oversight.
Lawmakers Chime In
Donald Trump’s pick may very well have been chosen to protect the President. Senate Minority Leader Chuck Schumer claims Trump “chose the candidate who he thought would best protect him from the Mueller investigation.”
Bloomberg notes that Senator Richard Blumenthal went a step further, demanding that Kavanaugh recuse himself from any criminal case involving the president.
Further, Bloomberg notes that Kavanaugh in a 2009 article claimed that the U.S. Presidents need to be protected from criminal proceedings while holding office.
Kavanaugh has even attempted to play to the left base by arguing that Bill Clinton was burdened by Ken Starr’s investigation, for which Kavanaugh worked.
“The nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal investigation offshoots,” he wrote in the Minnesota Law Review in 2009.
Democrats have promised to fight Brett Kavanaugh’s appointment, although Trump and his Republican-led Congress are likely to garner the votes necessary to appoint the conservative judge. If the SCOTUS sways further to the right, Presidential investigations could become a thing of the past.