Supreme Court nominee Brett Kavanaugh argued in a 1999 roundtable conversation that the 1974 court decision which forced former President Richard Nixon to turn over the Watergate tapes may have been decided in error.
The roundtable discussion was released to the public on Saturday along with thousands of other documents that Kavanaugh presented to the Senate Judiciary Committee as part of his confirmation process.
The AP quotes from Kavanaugh’s discussion:
“But maybe Nixon was wrongly decided — heresy though it is to say so. Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official. That was a huge step with implications to this day that most people do not appreciate sufficiently...Maybe the tension of the time led to an erroneous decision,” Kavanaugh said in a transcript of the discussion that was published in the January-February 1999 issue of the Washington Lawyer.
At another point in the discussion, Kavanaugh said the court might have been wise to stay out of the tapes dispute. “Should U.S. v. Nixon be overruled on the ground that the case was a nonjusticiable intrabranch dispute? Maybe so,” he said.
The quote is likely to alarm Democrats who are concerned about the impact that Kavanaugh, if confirmed, may have on Special Counsel Robert Mueller’s investigation of the Trump White House.
It’s possible that Kavanaugh’s view on the Nixon decision has changed. In a 2016 law review, according to AP, he referenced the decision, writing that “some of the greatest moments in American judicial history have been when judges stood up to the other branches, were not cowed, and enforced the law.”
But this is hardly the first indication that Kavanaugh believes in strong executive power. In 2009, he wrote an article for the Minnesota Law Review arguing that sitting presidents should be exempt from criminal prosecution. He wrote:
I believe that the president should be excused from some of the burdens of ordinary citizenship while serving in office. We should not burden a sitting president with civil suits, criminal investigations, or criminal prosecutions.
That sure doesn’t sound like someone who’d rule to prosecute a sitting president for crimes, or even force him to testify.