Trump Court Pick Brett Kavanaugh Could Have A Big Impact On Mueller Probe Supreme Court nominee Brett Kavanaugh opposes limiting the power of the presidency. That opinion could have profound consequences for the special counsel investigation.
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What A Justice Kavanaugh Could Mean For The Mueller Investigation And Trump

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What A Justice Kavanaugh Could Mean For The Mueller Investigation And Trump

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What A Justice Kavanaugh Could Mean For The Mueller Investigation And Trump

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RACHEL MARTIN, HOST:

Supreme Court nominee Brett Kavanaugh shares one important view with President Trump. Both are deeply suspicious of any attempt to limit the president's power. And that view could have important consequences for special counsel Robert Mueller's investigation. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: President Trump hates - he really hates - the Mueller investigation.

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PRESIDENT DONALD TRUMP: I call it a witch hunt. That's exactly what it is. It's a vicious witch hunt. And you know what? It's very bad for our country.

TOTENBERG: The president rails about the fact that the investigation is out of his control. And it's no accident that his pick for the Supreme Court, Judge Brett Kavanaugh, has an expansive view of presidential power. To understand just how broad, you have to go back some 40 years, when another president was being investigated by a special prosecutor. The year was 1974. A special prosecutor was investigating the break-in at Democratic headquarters and attempts by President Nixon to cover it up by halting the ongoing FBI investigation.

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BOB HALDEMAN: That the way to handle this now is for us to have Walters call Pat Gray and just say, stay the hell out of this.

TOTENBERG: What Nixon wanted was to have deputy CIA director Vernon Walters tell FBI director L. Patrick Gray to call off his agents. But when the prosecutors subpoenaed that recording and other tapes of presidential meetings, Nixon challenged it in court. He contended that the subpoena unconstitutionally violated the president's confidential conversations and his power to control information in the executive branch.

The Supreme Court unanimously ruled against him. It declared that even a president must comply with a subpoena if there's evidence of a crime. Chief Justice Warren Burger, a Nixon appointee, summarized the unanimous opinion from the bench.

He rejected the argument that the court should stay out of the dispute between the president and a subordinate in the executive branch. The special prosecutor is no ordinary subordinate, Burger said, because much like current prosecutor Mueller, the Watergate prosecutor by regulation was given, quote, "unique authority and tenure concerning his investigation."

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WARREN BURGER: Without access to specific facts, a criminal prosecution may be totally frustrated.

TOTENBERG: The case is considered an historic marker of judicial independence. And it stands for the proposition that no person, not even the president, is above the law. That brings us to Trump's Supreme Court nominee, Brett Kavanaugh. He seemed to agree with that characterization in a 2016 Catholic Law Review piece where he listed the Nixon tapes decision as among some of the greatest moments in American judicial history where judges have stood up to the other branches and enforced the law.

But in 1999, Kavanaugh expressed a very different view. In a bar association roundtable discussion, the transcript shows Kavanaugh repeatedly suggesting that maybe the Nixon case was, quote, "wrongly decided, heresy though it is to say so." He argued that the Supreme Court, by enforcing the subpoena, quote, "took away the power of the president to control information in the executive branch." He contended that the president's power as chief law enforcement officer, quote, "was diminished dramatically" by the ruling.

And he wondered aloud whether the decision should be overruled because it involved nothing more than a, quote, "inter-branch dispute" not subject to review by the courts. Replying to his own question, Kavanaugh said, maybe so. So which Brett Kavanaugh is the real one?

The 1999 critique is similar to positions he's taken as a judge deeply skeptical of laws and regulations that limit presidential power to hire, fire and decide matters that Kavanaugh believes are reserved for the president under the Constitution. Indeed, even though Kavanaugh worked for special prosecutor Kenneth Starr investigating President Clinton in the 1990s, and even though Starr was appointed under a post-Watergate independent counsel law upheld by a 7-to-1 Supreme Court vote, Kavanaugh has repeatedly said he thinks the decision in that case was flat wrong. Here he is in an appearance at the American Enterprise Institute just two years ago.

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UNIDENTIFIED JOURNALIST: Can you think of a case that deserves to be overturned?

BRETT KAVANAUGH: Yes.

(LAUGHTER)

TOTENBERG: After initially declining to elaborate, Kavanaugh cited the court's 1988 decision upholding the independent counsel law.

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KAVANAUGH: It's been effectively overruled, but I would put the final nail in.

TOTENBERG: For Mueller, Kavanagh's views could be problematic were they to prevail. One open question about a criminal investigation involving a president is whether the chief executive can be subpoenaed to answer questions. President Trump's lawyers contend a subpoena would be unconstitutional. So what does Kavanaugh think? Georgetown law professor Victoria Nourse.

VICTORIA NOURSE: If he believes the Nixon case was not decided correctly, then you rule against the special counsel. You rule for the president.

TOTENBERG: Kavanaugh, of course, has not weighed in publicly on the issue. But Robert Mueller was appointed special counsel in the current investigation under regulations that track the regulations in the Nixon case, regulations meant to protect Mueller's independence. Kavanaugh's sometimes conflicting comments on these issues leave a record that is perhaps deliberately blurred. His critics, however, see it pretty clearly. University of Texas law professor Stephen Vladeck draws a direct line between Kavanaugh's 1999 comments on the Nixon tapes case to his repeated hostility to the decision upholding the now-expired independent counsel law.

STEPHEN VLADECK: And the line is basically that the president really isn't and shouldn't be subject to, you know, internal checks from officers of his own branch, that the Constitution really only provides one mechanism for a sitting president to be held accountable. And that's the mechanism of impeachment.

TOTENBERG: Nina Totenberg, NPR News, Washington.

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