As President Donald Trump’s most recent nominee to the Supreme Court, Judge Brett Kavanaugh has been the target of numerous attacks from the left over the last several weeks. Most recently, the left has alleged that Kavanaugh would put Trump and the presidency “above the law” should he be confirmed as a justice.
It’s just the latest fever dream conspiracy theory among the #resistance set of the electorate — and it’s dead wrong: about the law, about Kavanaugh, and about reality.
The conspiracy theory — which is being spread by everyone from U.S. senators to Nate Silver of FiveThirtyEight (and even at the MLB’s All-Star game) — posits that Kavanaugh is a threat to Robert Mueller’s investigation because he believes independent counsels are unconstitutional. There’s a lot to unpack, so let’s start with Kavanaugh’s argument.
Brett Kavanaugh served as a staff attorney on Ken Starr’s independent counsel investigation into former President Bill Clinton’s various scandals. But unlike Starr, Mueller serves as a special counsel under Justice Department supervision.
As I noted several months ago, these are dramatically different positions:
A special counsel is appointed and overseen by the Department of Justice (DOJ). In the present case, Mueller reports to the Deputy Attorney General Rod Rosenstein.
For all practical purposes, it’s best to think of Mueller like another U.S. attorney, except instead of covering specific geographic areas, such as a state, his jurisdiction concerns only the Russia probe.
As part of the Department of Justice, Mueller is subject to all its rules and regulations, including DOJ specific procedures, all of which is laid out in 28 CFR 600.7.
Ken Starr, on the other hand, drew his authority from the Office of the Independent Counsel (OIC), an office and statute that expired in 1999. The OIC had broad power, oversight, and less supervision. Anyone with authority derived from these laws could disregard particular DOJ regulations to keep an investigation going.
Starr and other independent prosecutors under the OIC statute were incredibly powerful investigators, with an unchecked legal authority that was unique in the constitutional system.
That last part is critical: the prosecutors were uniquely powerful in the constitutional system.
The article by Kavanaugh that his opponents are citing lays out his argument for why the independent counsel statutes used by Starr and others were an unconstitutional aberration in our legal system.
Kavanaugh also argued in a 2009 law review article that criminal indictments of a sitting president effectively hamstring the executive branch’s ability to function. He outlined some basic guidelines that would end up fitting the current special counsel guidelines that Robert Mueller falls under at the DOJ.
It’s important to note that Kavanaugh’s view — that the OIC statutes were severely flawed, unconstitutional, and led to adverse outcomes — isn’t a minority position. The DOJ’s own Office of Legal Counsel has held for four decades that no sitting president can be indicted — something Robert Mueller is bound to follow. They argued multiple times that indictments of sitting presidents violated the Constitution and hampered political norms.
Furthermore, the vastly overpowered OIC statutes were considered so onerous by both Democrats and Republicans that they gladly let the laws lapse in 1999 with little protest.
The problem was that Ken Starr and other independent counsels believed they had the power to take down any official in the U.S. government, including a sitting president.
That level of power was challenged before the Supreme Court in Morrison v. Olsen in 1988. The Supreme Court upheld the IC’s power in that case, but a young Antonin Scalia, in only his second year on the bench, wrote what he and many consider his most magnificent dissent. His dissent was so powerfully made, in fact, that it’s now considered governing law on the topic.
Scalia’s argument was brutally simple and effective. He started, as he usually did, on the text of the Constitution:
To repeat, Article II, § 1, cl. 1, of the Constitution provides:
“The executive Power shall be vested in a President of the United States.”
As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation of powers principles if the following two questions are answered affirmatively:
(1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power?
(2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power?
Surprising to say, the Court appears to concede an affirmative answer to both questions, but seeks to avoid the inevitable conclusion that, since the statute vests some purely executive power in a person who is not the President of the United States, it is void.
In creating the OIC, Congress formed an entity that technically had more executive power than the presidency. And as Scalia pointed out, if the OIC deprived the president of any part of his executive power, then the law was flatly unconstitutional.
Brett Kavanaugh falls completely in line with Scalia on this argument — and they aren’t alone. Current Justice Elana Kagen said Scalia’s lone dissent in Morrison was “one of the greatest dissents ever written and every year it gets better.”
Where does this leave us with Kavanaugh regarding Robert Mueller’s investigation? Well, it depends.
Mueller is heavily constrained both by DOJ policies and by his superiors, one of whom is the president of the United States. But if Mueller tried to take on powers similar to Ken Starr, it’s likely that any Supreme Court justice would strike down his actions, from Kagen to Kavanaugh.
That’s not a bias — that’s just what the best legal minds in the country believe. And the best legal minds in the country agree with Antonin Scalia on keeping independent and special counsels, from Ken Starr to Robert Mueller, within a constitutional framework.