There are many reasons why President Donald Trump may have selected Brett Kavanaugh to be his next choice on the Supreme Court, including placating his political base’s desires for possibly overturning Roe v. Wade. But Trump likely wanted Kavanaugh on the Court for another reason.
In 2016, as a federal judge speaking at a conservative event, Kavanaugh expressed a strong desire to “put the final nail” in an important Supreme Court ruling which upheld the legality of an independent counsel investigating the executive branch.
The case was Morrison v. Olson, and the Court ruled in 1988 that a law established 10 years earlier, the 1978 Ethics in Government Act, was indeed constitutional. That ruling paved the way for an independent counsel to investigate former President Bill Clinton, an investigation which was led by Ken Starr and included a young lawyer at the time named Brett Kavanaugh.
Yes, the very same Brett Kavanaugh who is now Trump’s pick to the Supreme Court once was very much happy with the idea that an independent counsel could investigate the president. In fact, Kavanaugh held a very strong view on this point, taking an extreme position that a president could even be investigated for lying to White House staff or for misleading the public.
Such a take on that law is an extremist position to hold — but Kavanaugh quickly adopted a different point of view that was even worse when he was hired by Republican President George W. Bush.
In the Bush years, Kavanaugh went to the opposite extreme. He penned an article in a law review journal that suggested the president absolutely cannot and should not ever be the subject of any special counsel investigation, suggesting that such an inquiry “would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas.”
Bush soon appointed Kavanaugh to a federal judge position.
The shift in opinion on the idea that a president should or shouldn’t be investigated is one thing, and it demonstrates that Kavanaugh cannot be counted on to be a consistent voice on the High Court — his rulings could, in fact, rely on the political leanings of defendants or plaintiffs that make their way to his bench.
But Kavanaugh’s statement from 2016 is most troubling of all. Years ago, he had suggested that Congress should pass a bill ending the law that creates a special counsel — a move that would be wrong to make, but legal.
In his more recent comments from two years ago, he stated quite matter-of-factly his intent to undo court precedent as a judge, if given the chance to do so, ending constitutional protections for investigations that look into the improprieties of the executive branch, including the president himself. Talk about judicial activism!
This is bad for the obvious reason: The current special counsel investigation, headed by Robert Mueller, that is looking into members of the Trump administration and likely Trump himself, is at risk of being completely dismantled with Kavanaugh on the Supreme Court.
All Trump would have to do to stop Mueller’s work would be to sue that investigation, alleging it’s an unconstitutional Justice Department policy. Kavanaugh, based on his previous statements, would likely side with the other four conservative justices, granting Trump a get-out-of-jail-free card.
That cannot be allowed to happen. Given Trump’s back-and-forth comments from this week while discussing his meeting with Russia President Vladimir Putin, it’s clear that more is going on behind the scenes that the American people deserve to know about.
The only way we'll learn more is to ensure the investigation being carried out by Mueller is allowed to complete its work unimpeded. With Kavanaugh on the bench of the Supreme Court, it’s almost a guarantee that won’t happen.