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.
Kavanaugh’s belief in robust executive authority is front and center in his nomination by Donald Trump to replace the retiring justice Anthony Kennedy. The issue could assume even greater importance if special counsel Robert Mueller seeks to force Trump to testify in the investigation into Russian interference in the 2016 election.
A 1999 magazine article about a roundtable discussion in which Kavanaugh took part was part of thousands of pages of documents the nominee provided to the Senate judiciary committee as part of the confirmation process. The committee released the documents on Saturday.
Kavanaugh said at three points that the decision in US 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.
“But maybe Nixon was wrongly decided,” he said, “heresy though it is to say so. Nixon [the ruling] 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.”
A transcript of the discussion was published in the January-February 1999 issue of the Washington Lawyer magazine. At another point, Kavanaugh said the court might have been wise to stay out of the tapes dispute. “Should US v Nixon be overruled on the ground that the case was a nonjusticiable intrabranch dispute? Maybe so,” he said.
Kavanaugh was among six lawyers who took…