August 23, 2018

ACS-CREW Report Analyzes Implications of the Kavanaugh Nomination for the Special Counsel Inquiry


FOR IMMEDIATE RELEASE: August 23, 2018

CONTACT: Liz Rose, lrose@acslaw.org

In light of this week’s conviction of Paul Manafort and guilty plea entered by Michael Cohen, it is clear Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election and other Justice Department investigations into the President’s inner circle are accelerating, paving the way for what seems to be an almost inevitable future Supreme Court case on executive power.

Given the central role that questions related to the scope of executive authority could play in the progress of Special Counsel Robert Mueller’s investigation, the joint ACS-CREW Presidential Investigation Education Project asked constitutional law expert and professor of law Neil Kinkopf to conduct an in-depth analysis of the potential implications of a Kavanaugh confirmation.

Join a webinar briefing today at 4:30 with Professor Kinkopf to discuss these issues and the new report.

A former attorney in the Department of Justice Office of Legal Counsel, Professor Kinkopf served as Counselor to then-Senator Joe Biden for the impeachment trial of President Clinton and is a co-author of a leading case book on presidential power entitled, Separation of Powers Law: Cases and Materials.

The paper released today discusses the results of Professor Kinkopf’s review. It finds:

• Judge Kavanaugh has made clear through his written work and public statements that he adheres to the Unitary Executive Theory, which provides for sweeping presidential authority to exercise complete control over all actions of executive officials unfettered by court review or congressional regulation.
• The Supreme Court rejected the Unitary Executive Theory over 80 years ago and has repeatedly rejected it since then, including most recently in Morrison v. Olson.  However, with the retirement of Justice Kennedy, the appointment of Judge Kavanaugh – an avowed unitarian – has the potential to fundamentally shift the balance of views on the Supreme Court in favor of broad presidential authority.
• One of the main misconceptions of the Unitary Executive Theory is that the President holds the authority to conduct or direct all criminal investigations and prosecutions. This position is inconsistent with the constitutional framers’ original understanding and current federal statutes.
• Based in large part on this misconception, a unitarian Supreme Court would threaten the viability of the Mueller inquiry. Beyond finding that the President is immune from criminal indictment, a unitarian Court would likely answer “yes” to the following key questions despite longstanding precedents to the contrary:
(1) Can a President commit obstruction of justice with impunity?
(2) Can a President defy a grand jury subpoena for testimony?
(3) May the President terminate a Department of Justice investigation of the President himself?
(4) May the President fire Special Counsel Robert Mueller?
(5) May the President pardon himself?
• The nomination of Kavanaugh thus has the potential to upend our nation’s longstanding and constitutionally grounded commitment to the principle that the President is not above the law.

Background on President Trump’s Claims of Presidential Power and the ACS-CREW Presidential Investigation Education Project

When President Trump in June nominated Judge Brett Kavanaugh to the Supreme Court, the President and his legal team had already made broad claims of presidential power in response to the inquiry by the Special Counsel. The President’s attorneys in January laid out a written argument to Mueller that the President is not subject to obstruction of justice laws and is beyond the reach of a Special Counsel subpoena.  Separately the President himself announced that he has the right to pardon himself and intimated his inclination to fire Mueller and Mueller’s superiors at the Department of Justice. Moreover, in case these earlier claims seemed obscure, just this week President Trump asserted that he would be “totally allowed” to take over Special Counsel Robert Mueller’s probe if he wanted to – “I can go in, and I could do whatever – I could run it if I want.”  As the Senate considers the Kavanaugh nomination, it seems increasingly unlikely that the Supreme Court will not be asked to review questions related to the scope of executive authority.

Shortly after the President nominated Judge Kavanaugh, Caroline Fredrickson, President of the American Constitution Society (ACS), and Norman Eisen, Board Chair of Citizens for Responsibility and Ethics in Washington (CREW), in a New York Times op-ed provided an initial outline of the major constitutional questions relating to the Mueller inquiry that may face the Supreme Court. ACS and CREW have partnered on an initiative known as the Presidential Investigation Education Project to promote public understanding of the legal issues surrounding the investigations into Russia’s interference in the 2016 elections

The American Constitution Society (ACS), founded in 2001 and one of the nation's leading progressive legal organizations, is a rapidly growing network of lawyers, law students, scholars, judges, policymakers and other concerned individuals dedicated to making the law a force to improve lives of all people. For more information about the organization or to locate one of the more than 200 lawyer and law student chapters in 48 states, please visit www.acslaw.org.