463

Does this belong in the Kavanaugh part?

So called ‘President Trump’ selectively claims not to like leakers. If this were genuine he wouldn’t be a fan of his SCOTUS nominee Brett Kavanaugh who was fairly notorious for leaking in his time working with Ken Starr. 

But then Ken Starr himself-very much unlike Robert Mueller-was a consummate leaker:

 

“Starr infamously took an expansive view of permissible contact with the media, allowing discussions about issues related to the ongoing investigation — disclosures that other prosecutors view as improper or ill-advised.”

“While Starr had spokespeople, “he also had attorneys like Kavanaugh contact people who might have information to come to the office and offer to guide the press about the work of the office,” said former Iran-Contra prosecutor John Barrett, now a law professor at St. John’s University.”

“Writer and businessman Steven Brill, who set off a firestorm in 1998 with a cover story in his magazine, Brill’s Content, on Starr’s alleged leaks to the press, said Kavanaugh needs to offer a more detailed account of his interactions with reporters during the Whitewater probe.”

“If what he did was not improper, why didn’t he do it on the record? The point is they all knew it violated rule 6(e),” Brill said, referring to a federal court rule protecting grand jury secrets. “Brett was involved.”

UPDATE: In retrospect it’s hard not to look at Mueller’s extreme reticence with some ambivalence. Yes Starr-and Comey-abused the process but is there no happy medium? It seems that when a Democrat is investigated you get cowboys but when it’s a GOPer you get Mueller’s extreme fastidiousness in providing the public with any information.

The happy medium was actually the original Watergate investigation-while it didn’t have the outrageous leaks of a Ken Starr or a James Comey on the other hand did let the public know who was on the Independent Counsel and in general terms what they were up to.

End of UPDATE

It’s rather amazing that Kavanaugh has become (in)famous for believing that not only can a ‘President’ not be indicted-a fairly common view though subject to debate-but that even a special counsel for most investigations of the President are wrongheaded and should wait till s/he’s out of office.

Recently I talked about how unlike us liberals, conservatives actually learn from their mistakes-after the setbacks with David Souter and Robert Bork they streamlined their process to a fine science grooming potential conservative Supreme Court Justices on a farm team where they would be guaranteed to:

1. Be actual conservatives unlike Souter.

2. But learn to speak in a way that doesn’t terrify liberals unlike Bork: recall that Bork wrote a book entitled Slouching Towards Gomorrah. 

I wrote of this conservative strategy that’s shown no little success over the last two decades in a previous chapter. 

The key to number 2 is that conservative nominees don’t discuss their own ideological views but only speak of process, they use the anodyne language of jurisprudence-precedent, ‘don’t legislate from the bench, ‘don’t worry, I recognize that Roe v. Wade is settled law.’

FN: With Red states moving from de facto to explicitly overturning Roe v. Wade we see the dividends this strategy has paid. The SJC of Roberts, Gorsuch, and Kavanaugh may well be primed to overturn Roe. True Roberts himself may well find this particular bill too excessive but it nevertheless further moves the Overton Window to a time when a woman’s right to choose will be a fiction in many parts of the country.

Kavanaugh and Gorsuch certainly didn’t discuss overturning Roe at their confirmation hearings yet it’s not tough to see them doing just that.

End of FN

This is why lack of experience can actually be a feature not a bug-recall that John Roberts had comparatively little experience as judge prior to W nominating him to not just the SJC but Chief Justice of the SJC. Because it leaves the nominee with few outrageous legal decisions to explain and keeps the conversation out of ideology and on process. In the above link I argued that this conservative strategy had been so successful that even most liberals now declare that what’s important is that the nominee ‘respect precedent and not legislate from the bench.’

What a coup by the conservatives. What liberals should do is insist on a debate about ideology and refuse to be moved by talk of ‘precedent.’ Despite John Roberts great respect for ‘precedent’ his Court still found a way to gut the Voting Rights Act while at the same time being able to claim that he respected precedent and that the VRA is ‘settled law.’After all they didn’t overturn VRA just crippled it considerably by getting rid of Clause 4.

So the conservatives have gotten it down to a fine science. At least until now. But Kavanaugh unlike most of their recent picks presents some minefields. The key is that nominees are not supposed to have much of a paper trail-but Kavanaugh actually does have a considerable paper trail.

And his view that a President is effectively above the law is exactly the kind of view point that a conservative nominee doesn’t want out in the open-at least prior to being confirmed.

We have what he said before the Federalist Society-that if there’s one law he’d like to overturn it’s the Independent Counsel law.

“Judge Brett Kavanaugh two years ago expressed his desire to overturn a three-decade-old Supreme Court ruling upholding the constitutionality of an independent counsel, a comment bound to get renewed scrutiny in his confirmation proceedings to sit on the high court.”

“Speaking to a conservative group in 2016, Kavanaugh bluntly said he wanted to “put the final nail” in a 1988 Supreme Court ruling. That decision, known as Morrison v. Olson, upheld the constitutionality of provisions creating an independent counsel under the 1978 Ethics in Government Act — the same statute under which Ken Starr, for whom Kavanaugh worked, investigated President Bill Clinton. The law expired in 1999, when it was replaced by the more modest Justice Department regulation that governs special counsels like Robert Mueller.”

“The comments are certain to get new attention amid his confirmation proceedings given that President Donald Trump and his campaign remain under investigation by Mueller — and alongside the skepticism Kavanaugh previously expressed over whether a sitting president can be indicted.”

“Whether that means Kavanaugh views Mueller’s appointment and investigation itself as unconstitutional is unclear, given the special counsel works directly for the Justice Department under a different set of rules that governed the independent counsel.”

“If Kavanaugh provided a fifth vote for overturning the Morrison case, it could have implications for the Mueller probe, according to legal experts. While the independent counsel law expired in 1999, the regulations governing Mueller’s appointment as a special counsel, like the independent counsel law itself, prohibit Mueller from being fired without good cause.”

“It’s uncertain whether Kavanaugh’s hostility to the Morrison case means that he would view Mueller’s appointment itself as unconstitutional — or if he simply believes that Mueller could be fired for any or no reason.”

It’s uncertain if he thinks Mueller’s appointment is unconstitutional or just that he can be fired for any or no reason. 

Gee, there’s a risk I’d like to take.

And it’s even worse than that-Kavanaugh thinks maybe even Nixon got a raw deal in being forced to turn over those tapes. 

“Supreme Court nominee Brett Kavanaugh suggested several years ago that the unanimous high court ruling in 1974 that forced President Richard Nixon to turn over the Watergate tapes, leading to the end of his presidency, may have been wrongly decided.”

Nor is this a casual view of his that he doesn’t dwell on too much.

“Kavanaugh was taking part in a roundtable discussion with other lawyers when he said at three different points that the decision in U.S. v. Nixon, which marked limits on a president’s ability to withhold information needed for a criminal prosecution, may have come out the wrong way.”

“Three different times he brought it up. He expressed his view that Mueller’s appointment is unconstitutional or that maybe he can just be fired for any or no reason in 2016 not some eccentric view he held in college.”

“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.

Sure-what separation of powers?

“A 1999 magazine article about the roundtable was part of thousands of pages of documents that Kavanaugh has provided to the Senate Judiciary Committee as part of the confirmation process. The committee released the documents on Saturday.”

Interesting that he held the view that Nixon might have got a raw deal in 1999 at the same time he and Ken Starr were leaking all about Whitewater and Monica Lewinsky and they were trying to get him impeached.

But, again, the key to recent conservative success is that nominees don’t talk about their own views but hide behind an arcane discussion about jurisprudence. Kavanaugh’s very strongly held views about a President’s almost legal infallibility-at least a Republican President’s-has a chance of upsetting the apple cart. There is a clear opening to for liberals here though it remains to be seen wether they can prevent his eventual confirmation.

Like the Obama WH during the financial crisis it’s vital to be caught trying as the legitimacy of our democracy hangs in the balance-can you imagine if a Kavanaugh Court allowed Trump to fire Mueller? At that point it would truly be a constitutional crisis.

FN: Of course at the end of the day preventing Kavanaugh’s confirmation was always an uphill process and the MSM coverage of the accusations of sexual assault against Kavanaugh was abysmal. Having said that it’s arguable the Democrats under Schumer largely pulled their own punches.

Find link Mike

 

 

 

 

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October 28, 2016: a Day That Will Live in Infamy Copyright © by . All Rights Reserved.

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