President Donald Trump's Supreme Court nominee Brett Kavanaugh declared in 2016 that he wanted to "put the final nail" in the coffin of Morrison v. Olson, a Supreme Court decision that upheld a court-appointed special prosecutor's power to investigate high-level executive branch criminality. Recently CNN also unearthed a 1998 video of Kavanaugh saying, "It makes no sense at all to have an independent counsel looking at the conduct of the President." ("Special prosecutor" and "independent counsel" can be used more or less interchangeably, although there are slight differences.)
As co-author of the 1978 special prosecutor statute, I find these views troubling. They don't bode well for Robert Mueller's investigation.
The nail-in-the-coffin remark generated significant media attention, but what does it really mean? A closer look at the 1988 Morrison decision -- particularly at the dissent Kavanaugh appears to be echoing -- shows why Kavanaugh's statement is so worrisome. If he is confirmed and uses a long enough nail, overturning Morrison could lead to ending the Mueller probe, too.
Many legal thinkers on the right have never accepted the Morrison decision, looking instead to Justice Antonin Scalia's dissent in the case, which claimed the special prosecutor provisions were unconstitutional. But Scalia's opinion was riddled with errors. He argued that prosecutors who investigate presidential criminality should give the president and top aides and officials "sympathetic" treatment. You read that right: Scalia actually wrote that presidents deserve a prosecutorial "forum that is attuned to the interests and policies of the Presidency." It's supposed to be a "natural advantage" that presidents earn by winning elections, according to Scalia.
Aside from sounding crazy on its face, that dissenting opinion is deeply hostile to the fundamental point of the special prosecutor statute: No one, not even the president, is above the law. Therefore no one, not even the president, should get preferential treatment from "sympathetic" prosecutors and be insulated from prosecutors who are objective and follow wherever the evidence leads.
Scalia's view that presidents must be shielded and can't be scrutinized by unbiased prosecutors not under "complete" presidential control is nothing short of chilling. The Ethics in Government Act of 1978, which had provisions for naming a special prosecutor when serious allegations were lodged against a president, was specifically designed to ensure that a president wouldn't get favorable treatment from a prosecutor. If Kavanaugh is confirmed and adopts Scalia's view, it will threaten Mueller, and could undermine the rule of law itself.
Another contention of Scalia's dissent is that prosecution is "quintessentially" an executive function and the creation of an independent prosecutor weakens the presidency and threatens liberty. For Scalia, any incursion into a president's powers would be unconstitutional. His dissent urged us not to worry about integrity in government if we don't have an independent prosecutor law. Pointing to Watergate, he wrote that "political pressures" would ensure the appointment of one when needed.
Again, that's factually wrong. The political pressures around Watergate did not guarantee that Nixon's wrongdoing would come to light or that there would be unanimous support for his impeachment in the House Judiciary Committee -- far from it. Things could have turned out very differently, and almost did. We basically got lucky, but that doesn't mean we should trust luck in the future.
The Watergate special prosecutor was appointed out of a series of accidents. From the moment the burglars were apprehended in June 1972, the Justice Department handled the case. But Nixon's cover-up was so effective that the investigation did not lead to him or his top aides. On April 30, 1973, Acting Attorney General Richard Kleindienst resigned and Nixon picked Elliot Richardson to replace him. There was no special prosecutor statute at the time, but the Senate Judiciary Committee refused to confirm Richardson unless he committed to naming a special prosecutor and ensuring that prosecutor's independence.
Richardson agreed and named Archibald Cox as the special Watergate prosecutor, and the rest is history. Cox subpoenaed the Nixon White House tapes and insisted they be produced. Nixon had him fired for it, triggering impeachment proceedings in the House.
It is safe to say that without the special prosecutor, the tapes might not have been obtained, the House Judiciary Committee might not have started its impeachment inquiry, there might have been no bipartisan vote on impeachment, and Nixon might never have resigned. The rule of law might never have prevailed, and the President and his men might never have been held accountable. Constitutional order hung by a thread, and the special prosecutor was the key to restoring it.
In light of Watergate, Kavanaugh's claim that "it makes no sense" to have an independent counsel investigating presidential conduct is sheer nonsense, and historically wrong, since the special counsel's investigation was key to the Judiciary Committee's impeachment inquiry. (Again, technical distinctions between an independent counsel and a special counsel aren't important here.)
The special prosecutor provisions in the Ethics in Government Act and the Department of Justice regulatory scheme that succeeded them were an outgrowth of the Watergate experience. Congress did not want to leave the appointment of a special prosecutor to chance again, if and when future allegations of grave presidential misconduct arose.
After I co-authored the original special prosecutor law in 1978, its provisions were modified several times, and it was finally allowed to expire in 1999 as a result of the unfortunate experience with independent counsel Kenneth Starr's investigation of President Bill Clinton (in which Kavanaugh played a significant role). The law had flaws, but in my opinion they could have been corrected.
It was replaced by a regulatory scheme under which Mueller was appointed and his investigation is being conducted. The regulation allows, but does not require, the attorney general (or the deputy if the attorney general is recused) to appoint and remove a special prosecutor. The special prosecutor is not given the full powers of the attorney general but cannot be removed except for cause. Those protections are not as robust as Congress and I envisioned in 1978. But they are better than nothing.
For now, Mueller's position is insecure, if not precarious. Trump has threatened to fire him, repeatedly castigated his investigation as "a witch hunt" and called his appointment "unconstitutional." That may be a nod to Scalia's dissent in the Morrison decision, which Kavanaugh has already signaled he wants to spike.
We're already dealing with threats to our democracy -- Russia interfering in our 2016 presidential elections and the likelihood it will do it again, not to mention our President standing with Vladimir Putin's denials of interference and against the unanimous findings of our own intelligence community. The last thing we need now, or at any time, is a threat to the rule of law in high places. That's why Kavanaugh, with his hostility to independent, hard-nosed, unbiased investigation of presidential wrongdoing, shouldn't be on the Supreme Court.