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Brett Kavanaugh, Russian asset Donald Trump's pick to join the nation's highest court of law, has some problematic views on executive power. Those views are made even more problematic given the current executive, who just happens to be under criminal investigation for possible conspiracy with a foreign adversary in the 2016 election. And those problems just ratcheted up with video dug up by CNN of an appearance by Kavanaugh at the American Enterprise Institute in March, 2016.
He was asked what case he would overturn if he could, and at first played it cagey, because of course he knew he was on a number of short lists for the Supreme Court should a Republican win the White House. If you're on that list, you don't say controversial stuff out loud. But he just couldn't resist on this one.
"Actually, I'm going to say one. Morrison v. Olson. It's been effectively overruled, but I would put the final nail in," according to a video of the event
What's Morrison v. Olson? It was a Supreme Court decision that upheld the constitutionality of provisions creating an independent counsel under the 1978 Ethics in Government Act. The independent counsel law expired in 1999 and was replaced by the somewhat weaker Justice Department's special counsel regulation. That's what Robert Mueller is now operating under. But Kavanaugh wants to put the "final nail" in it, ending any possibility of Congress's power to investigate the president. Which is kind of interesting, since Kavanaugh was on Ken Starr's team that hounded then-President Bill Clinton with a broad array of conspiracy theories. Since then, Kavanaugh has changed his tune, because now he believes a president should be beyond Congress's reach.
Kavanaugh's belief, argued in an article that he authored in 2008 for the Minnesota Law Review, that "the President should be excused from some of the burdens of ordinary citizenship while serving in office" is well-known. He argued there that the executive basically can't be indicted, sued, or even investigated. Because he (and it will probably always be "he" in Kavanaugh's world) is president. Period. He proved just how much he means that just two years ago, in those remarks to the AEI.
In a normal world, that would be something the Senate would want to examine very carefully since it's their very power he wants to curtail. But this isn't a normal world. Senate Republicans will have no problem ceding that power, but it's enough on its own for any Democrat to reject Kavanaugh.