What Brett Kavanaugh's Confirmation Could Mean for Robert Mueller's Russia Probe

In an address to a conservative think tank in March 2016, Brett Kavanaugh was asked if he could think of any Supreme Court ruling that, in his view, deserves to be overturned. He demurred at first, but then offered a suggestion: Morrison v. Olson, an 1988 opinion that upheld the constitutionality of the Office of Independent Counsel, which Congress established in the aftermath of the Watergate scandal to address abuses of executive power. In a possibly related story, Donald Trump has tried to fire Robert Mueller at least once already, and would like nothing more than a way to bring history's most productive witch hunt to a quiet conclusion.

The "independent counsel" is, incredibly, distinct from the special counsel position to which Mueller has been appointed. (The one thing that unites all previous congresses throughout this country's 200-plus-year history is their zeal for using the most convoluted language imaginable.) As noted in the order that established the Russia probe, Rod Rosenstein has the statutory authority to appoint an outside special counsel to lead criminal inquiries whenever the Justice Department's efforts would be plagued by conflicts of interest—like, for example, when the attorney general is too wrapped up in Russian intrigue for anyone to take seriously his professions of evenhandedness.

Independent counsels also looked at allegations of wrongdoing in the executive branch, and the institution is also a creature of statute—specifically, the Ethics in Government Act of 1978, as amended. That law delegated the appointment process to a three-judge panel, not the attorney general, and restricted the grounds on which the attorney general could relieve them of their duties. Critics argued that this structure gave too much power to partisans like Ken Starr, who, with a bright-eyed young attorney named Brett Kavanaugh under his wing, turned an investigation of certain Clinton-adjacent real estate deals into a sprawling behemoth that spent God knows how many taxpayer dollars on litigating the precise definition of "sexual relations."

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In Morrison, the Court rejected a challenge to the law over the strenuous objections of the late Justice Scalia, who insisted that since criminal prosecution is a "purely executive" power, attempts to take that power away from the president are unconstitutional. But the independent counsel provisions of the Act expired by their own terms the following year, and for all intents and purposes, the special counsel—again, Mueller—is what has replaced it. Strictly speaking, Kavanaugh's criticism of Morrison is moot, since that case upheld a specific statute that no longer exists. This is a neat trick often employed by lawyers when they've been asked to say something but don't want to say anything controversial: argue a point that sounds substantive but is in fact academic.

I go into all this excruciating detail to make clear that Kavanaugh's comments do not necessarily mean that he views Robert Mueller's very existence as some great offense against the Constitution. But given the similarities between the office he was criticizing and the office that is currently investigating the man who offered him this job, they do raise questions about his already-expansive views on the outer limits of executive power. The old independent counsel law still provides much of the framework for the institution of the modern special counsel, and proposals are floating around Capitol Hill to reinstitute it if Trump were to fire Mueller. If Kavanaugh believes that Mueller, by any title, is performing a function that the Constitution reserves to Donald Trump and Jeff Sessions, overruling Morrison might be what President Trump needs to get rid of Mueller for good.

Supreme Court confirmation hearings are carefully-choreographed performances during which nominees reveal as little as possible about how they'll do the job to which they're receiving a lifetime appointment, which will make it difficult for Senate Democrats to make much of these two-year-old remarks during their allotted time for questioning. If asked, he'll offer some polite banalities about how the facts of every case are different, and about why he is therefore reluctant to discuss hypotheticals or commit himself to resolving a certain matter in a certain way. Chuck Schumer will express frustration with Kavanaugh's reticence, and Mitch McConnell will act incredulous at this frustration and praise Kavanaugh for demonstrating such poise in the face of such outrageous partisan attacks.

Democrats have to try, though. The evidence continues to mount that Brett Kavanaugh views even marginal incursions on executive authority with great suspicion, and in an era when Republican legislators have proven themselves unwilling to exercise their basic oversight obligations in order to protect their party's leader, the independent judiciary has been instrumental in (occasionally) stopping Donald Trump from doing whatever the hell he wants. If he manages to fill Supreme Court vacancies with enough willing rubber-stampers, though, he might not have to worry about Robert Mueller much longer.