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A Courtier for the Imperial Presidency

For almost 20 years, Brett Kavanaugh has been a consistent voice in favor of maximal executive power and privilege.

Mandel Ngan/AFP/Getty

The Supreme Court does not ordinarily hear cases during its annual summer recess, but the summer of 1974 was not ordinary. The Watergate crisis had entered its final stages. Congress and the special prosecutor’s office both jockeyed to obtain President Richard Nixon’s collection of White House tapes, which contained evidence of his role in the coverup. Nixon vigorously fought special prosecutor Leon Jaworski’s subpoena by citing national security and executive privilege.

In a unanimous 8-0 decision, the court rejected Nixon’s efforts to thwart the subpoena. “Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications ... can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances,” Chief Justice Warren Burger wrote for the court. The ruling came to symbolize the triumph of the rule of law and the principle that no man is above it. Nixon resigned two weeks later.

Brett Kavanaugh, President Donald Trump’s nominee to replace retiring Supreme Court Justice Anthony Kennedy, has articulated a different interpretation of those events. In a 1999 interview, he argued that the landmark Watergate tapes case, United States v. Nixon, may have been “wrongly decided” due to the “tension of the time.”

This suggestion is in line with Kavanaugh’s general views on the executive branch’s constitutional authority. From the White House’s ability to fire federal officials to whether its occupant can face lawsuits while in office, Kavanaugh has articulated an extraordinarily deferential stance on presidential powers and privileges. His ability to put those views into practice as a Supreme Court justice would be a boon to future presidents—and to the man who nominated him for the post.

Kavanaugh made the remarks about Nixon during a roundtable discussion that was covered by Washington Lawyer magazine. The article, which was among thousands of pages of documents submitted to the Senate Judiciary Committee as part of Kavanaugh’s confirmation process, quotes his views on the case at length:

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.

“Should U.S. v. Nixon be overruled on the ground that the case was a nonjusticiable intrabranch dispute?” Kavanaugh was quoted as saying. “Maybe so.”

In immediate terms, those remarks raise questions about how Kavanaugh would decide cases related to the Russia investigation if they reach the Supreme Court. Most of the investigation covers events that took place before Trump took office, but one of its key avenues of inquiry is whether Trump obstructed justice by firing FBI Director James Comey last May. Trump’s lawyers have resisted allowing the president to be interviewed by special counsel Robert Mueller on the matter. They have also disputed the idea that Trump can commit obstruction of justice at all.

If Trump ultimately rejects the request for an interview, Mueller could obtain a subpoena from the grand jury and try to compel him to testify before it. I noted last month that such a move would trigger a dramatic legal showdown between the president and the special counsel that would likely reach the Supreme Court. (It’s also possible that Trump would simply fire Mueller on the spot, sparking a different sort of crisis.) How would Kavanaugh rule on the matter if he sits on the court when the case arrives?

More broadly, Kavanaugh’s framing of the situation in Nixon is disquieting. The case established that even the presidency must bow to the American criminal justice system. We also now know that the justices feared Nixon’s lawlessness and crafted a unanimous opinion to prevent him from defying the court. Reducing the Watergate crisis to a “nonjusticiable intrabranch dispute” between the president and a “subordinate” employee in the executive branch—in this case Jaworski, the special prosecutor—disregards both history and the court’s responsibility to maintain the American rule of law.

It’s possible, of course, that Kavanaugh’s views on Nixon and on Watergate itself have changed in the past 19 years. But his more recent work indicates that he has continued to take an expansive view of presidential authority. In a 2009 Minnesota Law Review article titled “Separation of Powers During the Forty-Fourth Presidency and Beyond,” Kavanaugh reflected on the state of the presidency and offered five proposals to cure what he saw as defects in it.

He was well-positioned to write the article. Kavanaugh drew on his experiences tangling with the Clinton administration as a member of independent counsel Ken Starr’s team, as well as his service in the George W. Bush’s administration. His five suggestions run the gamut from the mundane (the Senate should hold a vote on every judicial nomination within 180 days of receiving it) to the eclectic (what if the president served a single six-year term?). One proposal stands out above the others: Give the president temporary immunity from civil lawsuits and criminal prosecutions while in office.

“Having seen first-hand how complex and difficult that job is, I believe it vital that the president be able to focus on his never-ending tasks with as few distractions as possible,” he wrote. “The country wants the president to be ‘one of us’ who bears the same responsibilities of citizenship that all share. But I believe that the president should be excused from some of the burdens of ordinary citizenship while serving in office.”

It’s not hard to see the practical implications of that argument. Excusing the current president from the “burdens of ordinary citizenship” would likely grind the Russia investigation to a halt, denying the American people answers about the president’s potential complicity in Russian cyberattacks on the American democratic process. Temporary immunity would also likely let Trump escape political embarrassment from multiple lawsuits brought by women who have accused him of sexual assault.

Kavanaugh’s supporters have defended him by noting that his proposal was that Congress, not the courts, establish the president’s temporary immunity from lawsuits and investigation. That much is true. What those defenses elide is the reasoning behind Kavanaugh’s argument: a back-breaking deference to the president’s job performance over the ordinary processes of the American judicial system. “We exalt and revere the presidency in this country—yet even so, I think we grossly underestimate how difficult the job is,” he wrote.

There’s evidence that Kavanaugh would apply a similarly deferential and expansive view of presidential power on the Supreme Court. As a judge on the D.C. Circuit Court of Appeals, he wrote a three-judge panel’s decision in 2016 that found the structure of the Consumer Financial Protection Bureau to be unconstitutional. Congress established the consumer-protection watchdog with a single director who could only be removed by the president for cause. Insulating the CFPB from the president’s direct oversight, Kavanaugh argued, threatened Americans’ freedom.

“The CFPB’s concentration of enormous executive power in a single, unaccountable, unchecked director not only departs from settled historical practice, but also poses a far greater risk of arbitrary decision-making and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency,” he wrote. Placing the agency under the president’s direct control was the best remedy to this flaw, he concluded. The entire D.C. Circuit Court of Appeals vacated Kavanaugh’s ruling in January and upheld the CFPB’s structure as established by Congress.

In his CFPB ruling, Kavanaugh quoted at length from Justice Antonin Scalia’s dissent in Morrison v. Olson, the 1985 Supreme Court ruling that upheld the constitutionality of the Independent Counsel Act. Scalia’s dissent in Morrison articulated what’s known as the unitary-executive theory, which holds that the president has near-unchallenged powers over the executive branch and its functions. During a D.C. think-tank event in 2016, Kavanaugh was asked if there was any Supreme Court ruling he would overturn. He initially declined to answer before naming Morrison as his choice.

Kavanaugh, for what it’s worth, won’t be a unitary figure on the Supreme Court. If the Senate confirms him to a lifetime appointment, he’d still have to persuade his eight colleagues to adopt his broad views on executive power before those stances could reshape American constitutional law. Nonetheless, the record indicates that as a justice, Kavanaugh would be a reliably deferential voice for President Donald Trump and his successors for decades to come.