Brett Kavanaugh and the Mueller Investigation: What Do His Writings Really Say?

[babylonsister]

I don't think dt should be allowed to get anywhere near the SC, but this is interesting.

Brett Kavanaugh and the Mueller Investigation: What Do His Writings Really Say?
By Benjamin Wittes
Tuesday, July 10, 2018, 6:03 PM

snip//

If Kavanaugh’s writings on special counsel investigations really influenced Trump’s decision to nominate him, then Trump is a bigger fool than I have imagined. Kavanaugh’s writings on the subject don’t clarify all of his views on the subject of the Mueller investigation. But they clarify certain big things, and those things are really not good for Donald Trump. Noah Feldman writes that “Properly understood, Kavanaugh’s expressed views actually support the opposite conclusion” than the one to which many knees are jerking. Feldman is exactly right. In some respects, he actually understates the case.

Kavanaugh’s writings on the subject of special counsel investigations did not begin with the 2009 Minnesota Law Review article. In 1998, he published in the Georgetown Law Journal an article he had written after leaving his job with Kenneth Starr’s investigation but before returning to the office to help write what became the Starr Report.

I remember this article vividly, because it was an unusual one for its time. This was a period in which a consensus had developed that the old independent counsel statute had to go. Conservatives had always hated it. Liberals had come to hate it. And, in fact, Congress would allow it to lapse in 2000 after everyone from Starr himself to the Justice Department urged its end.

Kavanaugh, by contrast, made the then-unpopular case that some independent counsel law remained necessary: “future debates,” he wrote, “should not focus on whether a special counsel statute is necessary, but rather on the more pertinent questions of by whom and under what conditions a special counsel should be appointed.” He went on to sketch out what a healthier independent counsel law might look like—healthier as a matter of constitutional law, as a matter of policy and as a matter of democratic governance. While Congress did not take him up on writing this particular law, his specific proposal bears attention today by those who are interested in how Kavanaugh might respond to the Office of Special Counsel in the age of Trump. Three things in particular stand out.

snip//

Note the strength of some of his language on this point: If the law permitted government officials to assert common privileges against the federal grand jury,

a government official (including the President or White House Counsel) safely could tell a White House or other agency attorney (or other official) that he destroyed subpoenaed documents, paid off potential witnesses, erased a subpoenaed tape, or concealed subpoenaed materials—or worse. The courts have rightly rejected the executive’s attempt to conceal such information, and Congress should codify those results to prevent future Presidents from trying the same gambit.

In other words, by the time Kavanaugh gave his speech in Minnesota, he had already written a developed statutory proposal that described a structure very much like that of the Mueller investigation; he had defended the very idea of such investigations; and he had described the president as having no executive privilege to assert before them.

more...

https://www.lawfareblog.com/brett-kavanaugh-and-mueller-investigation-what-do-his-writings-really-say

[hlthe2b]

1. I respect Wittes, but more than 200 Yale alumni disagree on Kavanaugh

and are alarmed enough to demand Yale withdraw its "proud" support of his nomination:
https://www.democraticunderground.com/100210853736