This paper examines the consequences that confirming Judge Brett Kavanaugh, President Donald Trump’s nominee to be Associate Justice of the United States, would have for the ongoing investigation of Russian interference in the last presidential election. Because Judge Kavanaugh is an ardent proponent of the Unitary Executive Theory, the implications of Judge Kavanaugh’s confirmation are reasonably clear: the confirmation of Judge Kavanaugh would significantly undermine the ability of Special Counsel Robert Mueller, or any other authority, to conduct a credible, independent investigation of the President or the President’s campaign. This paper begins by setting forth the meaning of the Unitary Executive Theory of presidential power as well as Judge Kavanaugh’s advocacy of the theory. The paper then examines a number of the specific ramifications of this theory for the Mueller probe.
This memorandum was prepared for the Presidential Investigation Education Project, a joint initiative by ACS and CREW to promote informed public evaluation of the investigations by Special Counsel Robert Mueller and others into Russian interference in the 2016 election and related matters. This effort includes developing and disseminating legal analysis of key issues that emerge as the inquiries unfold and connecting members of the media and public with ACS and CREW experts and other legal scholars who are writing on these matters.