August 22, 2018

As Cohen and Manafort Guilt Raises Specter of Supreme Court Standoff, OLC Alums Sound Alarm That a Kavanaugh Supreme Court Would Shield President Trump From Accountability

Judge Brett Kavanaugh


CONTACT: Liz Rose,

The Letter--Addressed to Senate Judiciary Committee Chairman Chuck Grassley and Ranking Member Dianne Feinstein--Highlights the Disturbing Potential Implications of Kavanaugh’s Views on United States v. Nixon and Presidential Power

WASHINGTON, D.C.—On Tuesday, constitutional law experts and former members of the Department of Justice’s Office of Legal Counsel sent a letter to Senate Judiciary Committee Chairman Chuck Grassley and Ranking Member Dianne Feinstein imploring them to thoroughly examine President Trump’s Supreme Court nominee, Brett Kavanaugh, regarding his theories on the power of the president.

The letter warns that Judge Kavanaugh has highly concerning opinions on the United States v. Nixon ruling, a case which unanimously held that the President was obligated to comply with a subpoena. In a 1999 interview, Kavanaugh stated that by complying with the Special Counsel’s subpoena during the Watergate investigation, Nixon relinquished his established presidential powers. This brings to light Kavanaugh’s apparent commitment to the unitary executive theory, which posits complete, unencumbered presidential control over the actions and decisions of any executive branch official. The Senate Judiciary Committee must press Kavanaugh to clarify his views on this case and on the unitary executive theory.

In light of yesterday's conviction of Paul Manafort and the guilty plea entered by Michael Cohen, it is clear that Mueller’s investigation is accelerating. Given that these cases could quickly find their way to the Supreme Court, Kavanaugh’s ideas about overruling Nixon could have alarming implications. The unitary executive theory places the president above the law and could thus grant Trump the ability to block Mueller’s investigation from proceeding properly. The letter therefore underscores the importance of gaining a full understanding of Kavanaugh’s views, including a complete review of all of the documents from his tenure as Associate White House Counsel and as Staff Secretary to President Bush, before his confirmation vote takes place.

Signatories on the letter:

Walter Dellinger

Dawn E. Johnsen

Neil Kinkopf

H. Jefferson Powell

Christopher H. Schroeder

Peter M. Shane

Read the full letter here.

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