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Much is being made of Judge Brett Kavanaugh’s Minnesota Law Review article arguing that presidents should be allowed to commit crimes with impunity. Liberals seized on it instantly, prompting a round of contrarian hot takes from academics aggressively missing the point. Yes, Kavanaugh’s article posited only that Congress should insulate the Executive from scrutiny, implicitly noting that this isn’t the state of the law in the status quo.
But it was never about the specifics of that argument as much as it revealed Kavanaugh’s base contempt for checks upon authoritarianism. It’s that his paper trail on executive oversight amounts to “Jesus take the wheel” except Jesus in this case is the desiccated corpse of Richard Nixon.
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Which brings us to these comments from then-Judge Kavanaugh expressing his interest in overruling Morrison v. Olson, the precedent that upheld the constitutionality of the Office of Independent Counsel. Actually, that’s too passive — he says he wants to “put the nail” in that opinion. The disturbing thing, as Nate Silver pointed out, is that Kavanaugh isn’t asked about this case — he’s asked about what one case he’d target generally and this one was the first one that popped to mind. It seems this guy’s really got tyranny on the brain.
Now, the Independent Counsel law has lapsed, and the Mueller investigation isn’t subject to that law anyway, so why should anyone worry about Kavanaugh’s position on this case? Mostly because whenever the president does fire Mueller, the obvious and immediate response will be reinstituting the Independent Counsel law and telling Mueller to seamlessly carry on with his work. And Brett Kavanaugh’s telling all 35 people who watch CSPAN on a daily basis that he’s going to be right there to strike down that law when it comes up.
As a practical matter, Kavanaugh doesn’t have to pass the law from his Minnesota article to shield the president from scrutiny, he just needs to kill any law that tries to dig into the campaign’s Russian cronies.
That’s why all these past arguments matter so much. But I’m sure we could all use another dose of “well, actually…” from some cloistered law professor.
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Trump Supreme Court pick: I would ‘put the nail’ in ruling upholding independent counsel [CNN]
Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.