The Chief Justice’s Inartful Dodging

“When Congress seeks information needed for intelligent legislative action, it unquestionably is the duty of all citizens to cooperate.” Trump v. Mazars, 140 S.Ct. 2019, 2036 (2020) (internal quotations omitted). So spoke the Supreme Court in an opinion by Chief Justice Roberts less than three years ago. Mazars involved congressional subpoenas for the financial records of then-President Trump, and the Court’s emphasis of the word all underscored the fact that the Constitution recognizes no super-citizens who are above this legal duty, not even the sitting president.

The chief justice seemed to be singing a different tune, however, when he responded this week to an invitation from Senator Durbin, chair of the Judiciary Committee, for Roberts or another justice of his choosing “to testify at a public hearing regarding the ethical rules that govern the Justices of the Supreme Court and potential reforms to those rules.”

Roberts informs Durbin that he “must respectfully decline” the invitation to testify. He explains that “[t]estimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.” He notes that “[t]he Supreme Court Library compilation of ‘Justices Testifying Before Congress in Matters Other Than Appropriations or Nominations’ has identified only two prior instances—Chief Justice Taft in 1921 and Chief Justice Hughes in 1935.” Furthermore, these and other instances of chief justices testifying before congressional committees involved only “routine matters of judicial administration” or similar “mundane” topics. Finally, Roberts cites the fact that “[c]ongressional testimony from the head of the Executive Branch is likewise infrequent,” pointing out that “no President has ever testified before the Senate Judiciary Committee and only three Presidents (in 1862, 1919, and 1974) have testified before any Congressional committee.”

Respectfully, this is an extremely silly argument. To begin with, it reads like a parody of how lawyers cherry pick precedents to support their arguments. Why does it matter how many times the “chief justice” (as opposed to any justice or even any Article III judge) has testified before “the Senate Judiciary Committee” in particular about matters other than appropriations or nominations? How is that more illuminating than, say, whether a justice named Roberts has previously testified in the month of May?

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Of Special Counsels and Congressional Investigations: Questions for Judge Kavanaugh

Note: click here to access full piece.

As you may have heard, President Trump has nominated Brett Kavanaugh, currently a judge on the U.S. Court of Appeals for the D.C. Circuit, to fill the vacancy on the Supreme Court. There has been a good deal of discussion about how a Justice Kavanaugh might approach issues of executive power, and in particular how he might rule on certain (at this point hypothetical) questions arising from the investigation by special counsel Robert Mueller into Russian interference in the 2016 presidential election.

I would like to propose a different line of questioning for Kavanaugh’s confirmation hearing, one that is not designed to score points for the pro-confirmation or anti-confirmation teams, but instead to illuminate the legal/constitutional framework within which allegations of presidential misconduct must be addressed. The jumping-off point for this discussion is Kavanaugh’s repeatedly expressed preference for congressional, rather than criminal, investigation of presidential misconduct. As we will see, this preference is not (or at least should not be) controversial, but it is in some tension with Kavanaugh’s efforts to hinder congressional oversight during his time as associate White House counsel.

Some background on Kavanaugh’s career: after graduating from Yale Law School in 1990, he spent several years clerking, culminating in a clerkship for Justice Anthony Kennedy, whose seat he has been nominated to fill. Kavanaugh went on to work for Kenneth Starr, the independent counsel appointed to investigate the Whitewater and Lewinsky matters. After a brief stint at Kirkland & Ellis, he joined the new George W. Bush administration, spending the first couple of years in the White House counsel’s office and then becoming the president’s staff secretary. President Bush appointed Kavanaugh to the D.C. Circuit in 2006.

Along the way, Kavanaugh authored three works relevant to our discussion today (there may be more, but I haven’t read them). Two are law review articles that have garnered a lot of attention. The third is Kavanaugh’s 2013 opinion in In re Aiken County, which I have mentioned previously but which has escaped widespread notice until recently.

The full piece is too long for a blog post but it may be accessed here. To sum up briefly, these are the three most important points I would aim to establish during Kavanaugh’s confirmation hearing:

1.  According to Kavanaugh, Congress is or should be the sole entity to determine whether the conduct of a sitting president warrants a sanction. The special counsel should not (or perhaps constitutionally may not) indict or prosecute a sitting president. (I think Kavanaugh is right about this, but it is important that Congress and the general public understand this view).

2.  Congress must have investigatory powers as strong as (or stronger than) those of the special counsel, at least when it is investigating presidential misconduct. Kavanaugh has recognized that a special counsel has a right of broad access to executive branch information, and he should do the same for Congress. Whether or not Kavanaugh accepts this proposition (or will speak to it at all), it seems to me a logical corollary of the first point. Otherwise we would be in a “catch 22” situation where only Congress can judge the conduct of a president but only the special counsel has access to the information needed to make that judgment.

3.  During his time at the White House counsel’s office, Kavanaugh was a key architect/defender of legal positions allowing the Bush administration to withhold information from Congress, including with respect to several congressional investigations involving serious and credible allegations of executive branch wrongdoing (the campaign finance, Boston FBI and Clinton pardon investigations). Kavanaugh should be pressed to explain the apparent inconsistency between those positions and points 1 and 2 above by, for example, acknowledging that the Bush administration positions were ill-considered and/or distinguishing them on the grounds that they are inapplicable to an investigation of a sitting president.