Friday, July 13, 2018

Would Justice Brett Kavanaugh Overrule U.S. v. Nixon?


Today, the United States indicted Russian nationals who answered candidate Trump’s public call for hacking Hillary Clinton’s campaign apparatus. 
The indictment should make Judge Kavanaugh sweat in a way he hasn’t had cause to as of yet. 
That’s because the evidence of some type of coordination between the Trump campaign and Russian hackers just grew—and by a lot.
So, how does Judge Kavanaugh’s 2009 law review article look after the indictment? His absolutist position on excusing a sitting president from a criminal investigation means that America’s election process could be handed over to Russian hackers while the investigatory process is potentially delayed until January 20, 2025.
That could make Judge Kavanaugh squirm during his testimony.
It is almost inevitable that a senator will ask the judge: “Given your position in your 2009 law review article, would you be willing today to say that U.S. v. Nixon should not be overruled or in any way turned aside from applying to the Mueller investigation?”
In the Watergate case, special prosecutor Leon Jaworski obtained a subpoena ordering President Nixon to release certain tapes and papers related to specific meetings between the President and those indicted by the grand jury. 
The tapes and the conversations they revealed were believed to contain damaging evidence involving the indicted men and perhaps the President himself.
Does that sound familiar?
The president refused to obey the subpoena. In short order, the matter came up for decision by the Supreme Court.
In a unanimous ruling, the Court upheld the investigatory powers of the special prosecutor. Nixon was ordered to submit to judicial process. He resigned shortly thereafter under the pressure of intense, bipartisan scorn and calls for his resignation.  
The key sentence in that decision acknowledged that the principle of executive privilege did exist, but also rejected President Nixon’s claim to an "absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances."
So, Judge Kavanaugh: Did the unanimous Supreme Court in 1974 get that ruling wrong, or would you apply it to President Trump? 
And if you won’t apply the precedent, how can you credibly claim to be a conservative who upholds—as you stated in your introductory comments to the American public— precedent and the rule of law?

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