Monica Welker, Blog Chair, University of Cincinnati Law Review
Law Review office water coolers have been abuzz the last few weeks. Justice Anthony Kennedy announced his retirement, and the legal and political worlds went into overdrive predicting who President Trump would pick to replace him. Much was made of the Federalist Society’s List of Twenty-Five Suggestions. Conservative judges’ previous opinions on abortion cases were scoured for hints of a desire to overturn Roe v. Wade. As the day of the President’s announcement grew closer, contenders were brought up, weighed against an invisible ideal of what makes a great jurist, and thereafter either contemplated or discarded as the likely nominee.
On Monday, July 9, at 9pm, we were greeted with the nominee: Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit. He is a prep school contemporary of Justice Gorsuch and a Yale Law graduate. Illinois Senator Dick Durban referred to Kavanaugh as a sort of Forrest Gump for his ability to pop up everywhere: a clerk for both Judge Kozinski of the Ninth Circuit and Justice Kennedy; an investigator in the death of Vincent Foster; a member of Independent Counsel Kenneth Starr’s team in the investigation of President Clinton; an attorney on the Elian Gonzalez immigration/kidnapping case in the 1990s; and a Staff Secretary under President George W. Bush.
The media is informing us on the basics of his career. In addition to the speculation about the future of Roe v. Wade, the media is focusing in on comments Kavanuagh has made regarding the problem posed to a sitting President when he has an Independent Counsel appointed to investigate his administration.
A wise legal scholar would not be deceived by the alarmist predictions, and would instead study Kavanaugh’s words, in context, and apply his particular judicial philosophy to attempt to understand how, hypothetically, Kavanaugh might rule on the matter of the constitutionality of an Independent Counsel. Then, our wise legal scholar would promptly append the phrase “it depends” and any number of disclaimers warning of the lack of wisdom in using her conclusion to make a real-world prediction in a case whose facts are not actually before us.
The Source Material
This article shall examine two law review articles written by Kavanaugh since his time working for Kenneth Starr as he investigated President Clinton in the 1990s. Its purpose is not to evaluate the validity of Kavanaugh’s arguments, just to examine them and hypothesize how they will affect American jurisprudence.
First, fresh off his time working with the Independent Counsel’s office, Kavanaugh contributed to a symposium for the Georgetown Law Journal in July of 1998. His contribution was entitled “The President and the Independent Counsel.”[1]
Second, in October of 2008, Kavanaugh took part in a symposium on Law and Politics in the Twenty-First Century at the University of Minnesota Law School. There, he spoke on the Separation of Powers During the Forty-Fourth Presidency and Beyond. He adapted his remarks into an article published in the Minnesota Law Review in May of 2009.[2]
Kavanaugh’s Prescription for Fixing the Independent Counsel System
In the Minnesota article, Kavanaugh suggest a series of ways to improve the Independent Counsel system.
First, Kavanaugh suggests that the appointment method needs to be adjusted to provide more accountability by having independent counsels nominated by the executive branch and approved by the Senate so as to prevent accusations of political motivation to persecute the administration by one party. Kavanaugh is deliberate in putting the onus on Congress to make this change.[3]
Second, he suggests that the President should have absolute discretion in appointing an independent counsel. He argues that the strict rules about when one should be appointed might prevent one from being appointed when public perception demands it and removing the issue from the President’s hands might result in the appointment of an independent counsel. To Kavanaugh, this would be a waste of time and energy when the public would have trusted the Justice Department to investigate on its own.[4]
Third, Kavanaugh calls on Congress to place the jurisdiction of an independent counsel into the hands of the President and his Attorney General. He argues that Congress has sufficient oversight over the Executive to prevent any hasty withdrawal of jurisdiction should the Executive get too uncomfortable.[5]
Fourth, he decries the mandatory reporting requirement of the independent counsel, which requires the counsel to provide a full report to Congress. Kavanaugh believes that a report to the Executive Branch would be sufficient, even in the case of the President’s activity being deemed improper.[6]
Kavanaugh’s fifth suggestion is the one that has attracted the most attention. Kavanaugh asks Congress to make the President temporarily protected from civil or criminal prosecution during his time in office. The President’s misdeeds should not go unpunished, he argues, but any lawsuits, investigations, and prosecutions should be deferred until after his time in office.[7]
Finally, Kavanaugh wants Executive Privilege to be inapplicable to criminal prosecutions except in matters of national security. He argues that this would clarify the issue of what is or isn’t subject to privilege, and reduce the number of times it is invoked.[8]
He quotes Alexander Hamilton in Federalist 65, arguing that offenses of public men necessarily turn political, which makes their prosecution delicate and potentially harmful to the public good. For this reason, he argues, it must be the representatives of the public, Congress, which engages in that prosecution through impeachment first as a sort of national inquest.[9]
He concludes by arguing that the flaw in the current independent counsel system is that it makes the President and the independent counsel adversaries, and that this adversarial relationship with the President necessarily becomes politicized, which is never good for justice.[10]
Kavanaugh’s Prescription for Fixing Washington, D.C.
In his Georgetown article, Kavanaugh provides a prescription of sorts to fix a “broken Washington.”
His first suggestion recalls his article in the Minnesota Law Review. Kavanaugh believes that any civil suits, criminal prosecutions, or investigations of sitting Presidents be deferred until the President is out of office. He is careful to accept, albeit grudgingly, the conclusion of Clinton v. Jones: a sitting President, in the constitutional status quo, can be sued. His suggestion is specifically that Congress should pass legislation to prevent that from happening.[11]
Second, he posits that the Senate should vote on executive and judicial nominees promptly, specifically within one hundred eighty days after their nomination. He refuses to delve into whether or not it should be a majority of sixty votes or fifty-one to approve a nominee.[12]
Expounding on that, he also believes that a nominee’s judicial philosophy is fair game for examination by the Senate, with deference to the President, but finds the idea of a nominee’s political philosophy or affiliations being investigated abhorrent.
His third suggestion is that the Executive Branch streamline its bureaucratic agencies and make them more accountable. He points to the CIA’s false intelligence on Iraqi weapons power, the massive failures of FEMA during Hurricane Katrina, and the failure of the financial regulatory agencies to prevent the financial collapse of 2008 as evidence of a lack of executive agency accountability. [13]
Fourth, Kavanaugh urges our government to recognize that the executive and legislative branches have legitimate and overlapping duties with regard to war and national security. This section is more of a clarification of how the War Powers Act should be amended and works to ensure more cooperation and less posturing during a time of national crisis. [14]
Finally, Kavanaugh advocates for a six-year Presidential term to reduce the President’s need to campaign as often. This would allow for more compromise and negotiation, instead of political stunts designed to appeal to the President’s base and get out the vote.[15]
Would Kavanaugh Uphold the Actions of an Independent Counsel?
So, now that Kavanaugh’s views on the subject of independent counsels have been laid bare, what, hypothetically, can one glean from his writings about his future rulings?
It is obvious that he is very protective of the President’s need for minimal distractions. He cites his time working with Kenneth Starr as giving him the insight that Presidents are just too important to have to deal with the annoyances, exhaustion and time sink that a formal investigation can present.
He does not, however, want to do away with independent counsels. Instead, he wants to give the keys to the President to turn it on and off. Kavanaugh trusts both public and Congressional pressure to prevent the President from ending an investigation into his administration too quickly.
But in plain sight, Kavanaugh is also quick to charge Congress with fixing the independent counsel system. Nowhere does he question the constitutionality of an independent counsel, just the wisdom of it as its legitimacy is taken as a given.
Another telling refrain running in both of these articles is Kavanaugh’s references to the President’s prosecutions necessarily turning political.
Baker v. Carr,[16] borrowing from Marbury v. Madison, preaches to us about the dangers of the Court wading into political questions. Kavanaugh appears to be arguing that the Supreme Court, by interfering with the Independent Counsel, would undoubtedly risk wading into territories that more appropriately belong to the other branches, and thus risk creating a controversy of coordinate branches contradicting each other. He also seems to believe that the Court ruling on the matter would also tempt other branches to feel a lack of respect from the Court.
Kavanaugh is, by all reports, a strict originalist. One is reminded of the greatest champion of originalism the Court has ever seen, Justice Scalia, and his fondness for judicial restraint.[17]
In fact, Judge Kozinski, for whom Kavanaugh clerked, is another originalist. He also believes in judicial restraint, going so far as to angrily and loudly accept a precedent that he found ridiculous, but still refused to ignore.[18]
As originalist judges tend to take pride on not being activist judges, it can be presumed that Kavanaugh is genuine when he repeatedly calls on Congress to make the changes he proposes in the independent counsel statutes. Kavanaugh would be slow to initiate such changes from the bench.
Should Kavanaugh be confirmed, which is highly likely at the time of this writing, he will have the benefit of being able to screen out cases he doubts are justiciable, including those involving political questions.
Therefore, it is unlikely that Kavanaugh will agree to hear a case on something like an independent counsel’s authority to subpoena a President.
What effect a denial of certiorari will have on a political situation will depend on the facts, and it could have the effect of making the independent counsel toothless. He is clear on the constitutionality of impeachment, and he is clear that after a President’s term is over, they should be liable for any crimes or torts they commit while they were President. He is just loathe to rule on political questions, and believes that the independent counsel system, while constitutional, is highly political and likely not justiciable.
In short, justice may not be swift if Kavanaugh has his way, but it won’t be forgotten.
Post- Script: The Political Neutrality of Kavanaugh’s Beliefs
While it may be tempting to view Kavanaugh as a partisan, anxious to defend a Republican President who is chaffing from an investigation by an independent counsel, it is worth noting that Kavanaugh developed his informed opinion on independent counsels while watching a Democratic President undergo one.
Additionally, his second article was developed from a speech he gave on the eve of the 2008 general election, when he did not know who the “Forty-Fourth” President alluded to in his title would be, but when polls showed future President Obama ahead of his Republican opponent.
Like all good justices, Kavanaugh appears to consider the long term effects of his opinions. He avoids the hypocrisy of partisans when they argue one set of consequences for someone who shares their political views, and another, harsher, set of consequences for someone who disagrees with him.
Kavanaugh happens to detest Independent Counsels running amuck in the Executive Branch unchecked. While one can conjecture as to what made him an attractive pick at this moment in history, his opinion is rooted in his objection evaluation of his experience, not in his political beliefs.
[1] Brett M. Kavanaugh, “The President and the Independent Counsel,” 86 Geo. L.J. 2133 (July 1998).
[2] Brett M. Kavanaugh, “Separation of Powers During the Forty-Fourth Presidency and Beyond,” 93 Minn. L. Rev. 1454 (May 2009).
[3] Supra n. 1, at 2135-2136.
[4] Id. at 2136.
[5] Id. at 2136-2137.
[6] Id. at 2137.
[7] Id.
[8] Id. at 2137-2138.
[9] Id. at 2160.
[10] Id at 2177-2178.
[11] Supra n. 2, at 1459-1462.
[12] Id. at 1463-1469.
[13] Id. at 1469-1475.
[14] Id. at 1475-1482.
[15] Id. at 1482-1486.
[16] 369 U.S. 186 (1962).
[17] John F. Manning, Justice Scalia and the Idea of Judicial Restraint, 115 Mich. L. Rev. 747 (2017).
[18] Trident Center v. Conn. Gen. Life. Ins. Co., 847 F.2d 564, 569-70 (9th Cir. 1988).
