Trump’s SCOTUS Nominee Would Overturn the Special Counsel Provision

It’s hard to believe that it was less than two weeks ago that Trump nominated Brett Kavanaugh to the Supreme Court and the entire media world was focused on what that would mean for everything from reproductive rights to the Mueller investigation. We all got distracted by the president’s attacks on our allies coupled with his displays of fealty to Russian President Vladimir Putin.

But CNN broke a story yesterday that takes us back to the conversation we were having a little over a week ago.

Judge Brett Kavanaugh two years ago expressed his desire to overturn a three-decade-old Supreme Court ruling upholding the constitutionality of an independent counsel, a comment bound to get renewed scrutiny in his confirmation proceedings to sit on the high court.

Speaking to a conservative group in 2016, Kavanaugh bluntly said he wanted to “put the final nail” in a 1988 Supreme Court ruling. That decision, known as Morrison v. Olson, upheld the constitutionality of provisions creating an independent counsel under the 1978 Ethics in Government Act — the same statute under which Ken Starr, for whom Kavanaugh worked, investigated President Bill Clinton. The law expired in 1999, when it was replaced by the more modest Justice Department regulation that governs special counsels like Robert Mueller.

As a reminder, Cory Booker and Rachel Maddow recently discussed the fact that the White House reviewed Kavanaugh’s history and wound up choosing the most self-serving candidate on their list of nominees. They found someone who questions whether or not a president can be investigated and would “put the final nail” in the decision upholding special counsels like Robert Mueller.

Those statements by Kavanaugh lend weight to the argument that a sitting president who is the subject of a criminal investigation should have to be exonerated before s/he nominates someone to sit on the Supreme Court for a lifetime appointment. Otherwise it is a blatant conflict of interest.

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly. Follow her on Twitter @Smartypants60 .