Brett Kavanaugh, Donald Trump’s Supreme Court pick, explained
Kavanaugh has also ruled in favor of the National Security Agency’s expansive call record surveillance operation, arguing that collecting these records did not constitute a “search,” and that even if it did, the government can take such records if it has a “special need” to prevent terrorism, even if this burdens the constitutional rights of those searched. That’s a truly expansive rationale that makes even many conservatives uneasy.
He also worked to limit challenges to detention for terror suspects, and recently wrote that he thinks the Consumer Financial Protection Bureau is unconstitutional on separation of powers grounds.
His views on executive power may continue to worry liberals as the Robert Mueller investigation unfolds. In a 1998
Georgetown Law Journal article titled,
“The President and the Independent Counsel,” written shortly after his service to Starr, Kavanaugh wrote that the independent counsel should be appointed by the president and approved by Congress, not by a panel of judges, to shore up the position’s constitutionality. This would have somewhat weakened the position’s independence relative to the executive; the independent counsel statute has since lapsed and the position no longer exists.
Further, he wrote that, “Congress should establish that the President can be indicted only after he leaves office voluntarily or is impeached by the House of Representatives and convicted and removed by the Senate” and that Congress should bar the President from claiming executive privilege and refusing to divulge information in criminal cases, except as a matter of national security.
“The proposals would enhance the public credibility of special counsel investigations, reduce the inherent tension between the President and the special counsel, and better enable a special counsel to conduct a thorough and effective law enforcement investigation of executive branch wrongdoing,” Kavanaugh concluded.
In 2009, he went further and argued that the president should be
exempted from both criminal prosecution and civil suits while in office, arguing that the latter should be delayed until he leaves the presidency:
A … possible concern is that the country needs a check against a bad-behaving or law-breaking President. But the Constitution already provides that check. If the President does something dastardly, the impeachment process is available. No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress. … The President’s job is difficult enough as is. And the country loses when the President’s focus is distracted by the burdens of civil litigation or criminal investigation and possible prosecution.
http://www.minnesotalawreview.org/wp-content/uploads/2012/01/Kavanaugh_MLR.pdf