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Experts: Kavanaugh May Tilt
SCOTUS To Insulate Trump

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Donald Trump presents Brett Kavanaugh, his pick to replace the retiring Anthony Kennedy on the Supreme Court. Photo courtesy The White House.
A 2009 Article From The Nominee Tapped To Fill The Vacancy Caused By Anthony Kennedy’s Retirement Reveals An Inclination To Shield A President While In Office


By Karen Weil
Modern Times Magazine

July 18, 2017 — It’s the final arbiter of law in our nation, but the U.S. Supreme Court is also considered a check on presidential power.

One prime example is United States vs. Nixon, which forced Richard Nixon – after a two-year investigation into the Watergate scandal – to turn over incriminating tapes. He then resigned on Aug. 9, 1974.

In Jones vs. Clinton – stemming from Paula Jones’ allegation that in 1991 Bill Clinton sexually harassed her when he was Arkansas governor --  the Supreme Court upheld a lower court’s decision that the president was subject to the same laws as all other government officials are.

That decision played an indirect role in Bill Clinton’s being impeached in December 1998 for perjury in connection to his affair with White House intern Monica Lewinsky.

Now, a president suspected of colluding with a foreign adversary to win the 2016 election may get to seat a second nominee to the highest court in the land.

Donald J. Trump’s pick, Brett Kavanaugh, is raising eyebrows among some in the U.S. Senate and legal community -- in part because of a 2009 article where he basically wrote that a president has too hard of a job to face any legal repercussion for illegal actions while in office.

(Kavanaugh served on former Independent Counsel Kenneth Starr’s team in the late 1990s when Clinton was impeached, and based on his own admission, had a different viewpoint 20 years ago.)

Should Kavanaugh be confirmed as Anthony Kennedy’s replacement, and Robert Mueller’s findings regarding possible collusion or obstruction of justice end up before the court, how will the new justice rule?

Two law professors discussed Kavanaugh and what his presence on the court might mean during a recent forum sponsored by the American Constitutional Society.

(Disclaimer: the ACS is a progressive legal organization that considers itself a counterweight to the conservative Federalist Society.)

Professor Victoria Nourse, of Georgetown University Law Center, said she is very concerned about the theory of a unitary executive, which Kavanaugh and many conservatives in Congress support. She added that the late Justice Antonin Scalia advocated for unitary executive power. In one decision, Nourse said Scalia argued that “the constitution grants the president executive power – it does not mean some of the executive power, but all of the executive power.”

Nourse said the word “all” does not occur in the constitutional text when it comes to presidential power, and “it’s doubtful the Constitution’s authors would do that. You can see why the Supreme Court has never [fully] accepted it.”

And even though a recent U.S. Senate commission forwarded a consensus that Trump cannot fire Mueller, Republican Sens. Ted Cruz, (Texas) Charles Grassley (Iowa) and Mike Lee (Utah) disagreed, Nourse said.

“We are no longer in the world of normal,” Nourse added. “The rest of the Constitution makes it really clear that the Congress has the power to limit the president’s conduct. This has been the tradition and practice since 1789.”

Professor Neil Kinkopf, of Georgia State University College of Law, said a unitary presidency “runs in the face of the rule of law.”

Kinkopf went further, saying Trump chose Kavanaugh because the justice supports the theory that will leave the president immune and “that’s really what [Trump] cares about.”

Trump’s lawyers have generally claimed a sitting president cannot obstruct justice. The Supreme Court hasn’t ruled on whether president fire the special counsel and terminate a Department of Justice investigation.

If the unitary executive attitude belief prevails on the county, it would allow Trump to evade being held accountable for any role he may have played in outside interference the 2016 election.

Kinkopf, recounted one experience when he was a special assistant in the U.S. Office of Legal Counsel in 1994. Clinton issued an executive order to close the federal government offices on the day of Nixon’s funeral, but didn’t have the authority to do that, the office decided.

Kinkopf said the Senate needs to consider that Kavanaugh would be the fifth justice who believes in the unitary executive theory, which would give his four fellow conservatives – Samuel Alito, Neil Gorsuch, John Roberts and Clarence Thomas – a solid majority.

However, Kennedy was not a total adherent, Kinkopf said. “Allowing Kavanaugh to get on the court will shift the balance, and that strikes me as really dangerous,” he added.

Kinkopf said existing justices who have ruled in Trump’s favor didn’t always do so when the Obama administration’s policies went before the court.

It’s fair to wonder, Kinkopf added, if Kavanaugh’s change of heart about presidential powers since 2008 is principled or only valid when it’s a president he likes.

Kinkopf  said “it’s almost certain” the Supreme Court a hear the case regarding whether Trump can indicted but right now, Congress is protecting him, rather than being an effective check on his actions.

While senators can ask Kavanaugh to recuse himself should a case against Trump come before the court, they have no way to enforce it – and Kinkopf said he’s not reassured Kavanaugh would do the right thing.

Nourse said when it comes to justices recusing themselves over a possible conflict of interest, “as we’ve seen before, many promises have been violated.”
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