Kavanaugh: Supreme Court case on Watergate tapes might have been 'wrongly decided'

First contacted day Kennedy announced retirement

By ARIANE DE VOGUE AND CLARE FORAN, CNN
Alex Wong/Getty Images

Judge Brett Kavanaugh during a meeting with Sen. Dean Heller on July 18, 2018.

WASHINGTON (CNN) - US Supreme Court nominee Brett Kavanaugh said back in 1999 that the landmark Supreme Court opinion that ordered President Richard Nixon to turn over White House recordings toward the end of the Watergate investigation might have been "wrongly decided."

The comments were part of an interview in a publication called Washington Lawyer and were included in the thousands of pages of documents released to the Senate Judiciary Committee on Saturday.

Reached for comment, the White House pointed to a more recent speech in which Kavanaugh praised the 1974 opinion in United States v. Nixon, which set a key precedent limiting presidential claims of executive privilege. It was unclear if Kavanaugh had had a change of heart over the years. The White House official declined to offer more context.

The inconsistency between what President Donald Trump's nominee said in 1999 and later on will raise questions during his confirmation hearing, and the release comes as some Democrats have expressed concern over Kavanaugh's views on presidential power given that he has suggested in the past that presidents be shielded from civil and criminal litigation until they leave office. His comments on the subject could take on more importance as special counsel Robert Mueller seeks to interview Trump as part of his probe into Russian interference in the 2016 election.

During a roundtable discussion with other lawyers published in the magazine, Kavanaugh said, "But maybe Nixon was wrongly decided --- heresy though it is to say so." Kavanaugh said the case "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."

In the landmark ruling, the Supreme Court unanimously rejected Nixon's argument for an absolute privilege protecting him from any subpoena for documents related to internal communications.

The roundtable discussion featured in the Washington Lawyer article, which was first reported by the Associated Press, explored the status of government attorney-client privilege in the aftermath of the Ken Starr investigation. Kavanaugh was part of that probe, which led to impeachment proceedings against former President Bill Clinton.

Steve Vladeck, a CNN Supreme Court analyst and law professor at the University of Texas said of Kavanaugh's comments in the article, "This is not only another example of Judge Kavanaugh's dogmatic view of presidential power, it is a remarkably narrow view of how much the president can be held to account. The view that the case was wrongly decided would suggest that there is no mechanism in Kavanaugh's view through which the executive branch can investigate the President."

Senate Minority Leader Chuck Schumer said in a statement Sunday that Kavanaugh's remarks on the case "bodes very poorly for any decision that Kavanagh might make to hold President Trump accountable."

A White House official declined to explain the discrepancy between Kavanaugh's views in 1999 and a speech at Catholic University in 2015 in which he described US v. Nixon as among a handful of cases that contributed to "greatest moments in American judicial history."

In that speech, Kavanaugh said the cases represented occasions when judges "stood up to the other branches, were not cowed and enforced the law."

Timeline for selection

Thousands of pages of documents were attached to Kavanaugh's Senate questionnaire, which also described how he was selected to fill the seat of retiring Justice Anthony Kennedy. He said he had discussions with Trump on three occasions before being chosen.

White House Counsel Don McGahn first called him late in the afternoon of Wednesday June 27, the same day that Kennedy announced his retirement, Kavanaugh wrote in response to a question about the selection process.

Several days later, on Monday July 2, Kavanaugh had his first interview with the President, the nominee writes. That was followed by an interview with Vice President Mike Pence on July 4. A second conversation with the President occurred by phone on the morning of Sunday, July 8. Later that evening, Kavanaugh traveled to the White House to meet with both the President and first lady Melania Trump.

"During that meeting, the President offered me the nomination, and I accepted," Kavanaugh wrote. On July 9, the pick was made official during Trump's prime-time announcement.

The Senate has not yet begun hearings to consider Kavanaugh's nomination, and his answers in the newly released questionnaire will be closely scrutinized by lawmakers looking for insight into his past and how he was chosen by Trump to fill the high court vacancy.

Top Republican senators, such as Senate Majority Leader Mitch McConnell and Judiciary Committee Chairman Chuck Grassley, have praised Kavanaugh, describing him as a highly qualified Supreme Court nominee. But Democrats have raised alarm over the nomination. Kennedy had voted to uphold a woman's right to abortion, and his departure has led to concern that Roe v. Wade, the landmark Supreme Court ruling that legalized abortion nationwide could be at risk. Some Democrats have also expressed concern over Kavanaugh's views on presidential power given that he has suggested in the past that presidents be shielded from civil and criminal litigation until they leave office.

Schumer focused on the issue in his statement on Sunday.

"It is also very confounding that the common thread that has emerged thus far in the cases that Kavanaugh is willing to openly criticize is their relation to presidential power and accountability," said the Democratic senator from New York. "But because he has demonstrated a willingness to express his views on existing Supreme Court precedents, he must be able to answer direct questions on stare decisis on many other matters, including Roe and healthcare."

One question in the Senate questionnaire asked if "anyone involved in the process of selecting you" ever discussed "any currently pending or specific case, legal issue, or question in a manner that could reasonably be interpreted as seeking any express or implied assurances concerning your position on such a case, issue or question?"

Kavanaugh gave only a one-word response: "no."

A version of the questionnaire is sent to every potential Supreme Court nominee, and Kavanaugh's version --- 110 page long --- is similar to a form he filled out when he sought his current seat on a federal appeals court.

Senate Democrats are pushing to review the lengthy paper trail associated with Kavanaugh, who previously served in former President George W. Bush's White House. CNN reported earlier this week that Democrats have deliberately held off on meeting with him until they can strike an agreement with Republicans on how to move forward on document procurement for the nomination.

Grassley in a statement on Saturday called the questionnaire that Kavanaugh completed "the broadest and most comprehensive ... ever sent by this committee."

A look into Kavanaugh's past

The questionnaire reveals Kavanaugh's employment history, club membership, press and speaking engagements and notable cases he has considered during his 12 years serving on the US Circuit Court of Appeals for the District of Columbia.

He lists his service as a clerk to Justice Kennedy, his tenure working for independent counsel Ken Starr during the investigation of former President Bill Clinton, and his time serving in the George W. Bush White House in the counsel's office and as staff secretary.

Kavanaugh notes that he served as a member of a group called "Lawyers for Bush-Cheney" during the controversial 2000 presidential election recount.

"I participated in legal activities on behalf of the "Bush/Cheney 2000 Campaign related to the 2000 election recount in DeLand, Florida," Kavanaugh wrote.

Kavanaugh provides an extensive list of his published writings and public speaking engagements over the years. He includes his work on the Starr investigation report, scholarly writings and several articles he wrote as an undergraduate of Yale University covering the sports beat for the Yale Daily News.

The record reveals that he spoke on several occasions at events sponsored by the conservative Federalist Society, a group that advises Trump on the Supreme Court.

The speaking engagements span roughly the last 20 years.

Kavanaugh included his membership at Catholic Charities as well as his coaching his daughter's basketball team at Blessed Sacrament School.

He notes that he became a member of the Chevy Chase Club, a private country club located near Washington, DC, in 2016.

He refers to the club as a "recreational club" and says, "we joined because the club has an outdoor hockey rink and a girls ice hockey program and because of its gym and sports facilities." He is a past member of the Congressional Country Club.

A separate question points out that the American Bar Association's commentary to its Code of Judicial Conduct states that it is "inappropriate for a judge to hold membership in any organization that invidiously discriminates on the basis of race sex, religion or national origin" and asks if any organizations he is affiliated with currently or formerly did so.

"Years before I became a member of the Congressional Country Club and the Chevy Chase Club, it is my understanding that those clubs, like most similar clubs around the country, may have excluded members on discriminatory bases that should not have been acceptable to people then and would not be acceptable now," he wrote.

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