The Republican nominee for the Supremes

Kavanaugh: Watergate tapes decision may have been wrong

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 was taking part in a roundtable discussion with other lawyers when he said at three different points that the decision in U.S. 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.

In 1999

Kavanaugh’s belief in robust executive authority already is front and center in his nomination by President 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 ongoing investigation into Russian interference in the 2016 election.

“But maybe Nixon was wrongly decided — heresy though it is to say so. 

"Nixon 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,” Kavanaugh said in a transcript of the discussion that was published in the January-February 1999 issue of the Washington Lawyer.

At another point in the discussion, Kavanaugh said the court might have been wise to stay out of the tapes dispute. 

“Should U.S. v. Nixon be overruled on the ground that the case was a nonjusticiable intrabranch dispute? Maybe so,” he said.

. . . .

Philip Lacovara, who argued the Watergate tapes case against Nixon and moderated the discussion, said Kavanaugh has long believed in a strong presidency. 

“That was Brett staking out what has been his basic jurisprudential approach since law school,” Lacovara said in a telephone interview Saturday.

Still, Lacovara said, “it was surprising even as of 1999 that the unanimous decision in the Nixon tapes case might have been wrongly decided.”

In 2016

Kavanaugh allies pointed to a recent, more favorable assessment of the Nixon case. 

“Whether it was Marbury, or Youngstown, or Brown, or Nixon, some of the greatest moments in American judicial history have been when judges stood up to the other branches, were not cowed, and enforced the law. 

"That takes backbone, or what some call judicial engagement,” Kavanaugh wrote in a 2016 law review article in which he referred to several landmark Supreme Court cases.

What would he think about the president pardoning himself or people who have done illegal things at his bidding or to his advantage?

How "strong" does Kavanaugh think a president should be?