What will last of Trump?

[GMDino]

NEWS: Kavanaugh bluntly said he wanted to overturn SCOTUS ruling upholding constitutionality of independent counsel. There’s difference bw independent counsel and special counsel (like Mueller) - but it’s bound to spark questions about how he views Mueller https://t.co/HWlcOiQVGP

— Manu Raju (@mkraju) July 18, 2018

Quote:Speaking to a conservative group in 2016, Kavanaugh bluntly said he wanted to "put the final nail" in a 1988 Supreme Court ruling. That decision, known as Morrison v. Olson, upheld the constitutionality of provisions creating an independent counsel under the 1978 Ethics in Government Act -- the same statute under which Ken Starr, for whom Kavanaugh worked, investigated President Bill Clinton. The law expired in 1999, when it was replaced by the more modest Justice Department regulation that governs special counsels like Robert Mueller.


The comments are certain to get new attention amid his confirmation proceedings given that President Donald Trump and his campaign remain under investigation by Mueller -- and alongside the skepticism Kavanaugh previously expressed over whether a sitting president can be indicted.

Whether that means Kavanaugh views Mueller's appointment and investigation itself as unconstitutional is unclear, given the special counsel works directly for the Justice Department under a different set of rules that governed the independent counsel.

Yet the 2016 remarks, which have not been previously reported, are consistent with Kavanaugh's judicial record expressing disdain for the Morrison ruling.

Asked at an American Enterprise Institute event in March 2016 if he could think of a case that deserved to be overturned, Kavanaugh said: "Yes." Asked if he could specify a case, Kavanaugh first responded: "No," prompting laughter from the audience.

He then volunteered this: "Actually, I'm going to say one. Morrison v. Olson. It's been effectively overruled, but I would put the final nail in," according to a video of the event.

There are important differences between the regulation governing Mueller and the independent counsel law. Unlike the independent counsel, Mueller reports directly to the Justice Department, and has less independence. But the special counsel cannot be removed without "good cause" under regulations that may withstand legal scrutiny because of the Morrison decision.

At the core of the 1988 ruling is the idea that Congress can create an independent investigative mechanism within the executive branch and insulate that investigation from direct control by the President -- by preventing the removal of the independent counsel except for good cause. Although a court of appeals panel had struck down the independent counsel law, the Supreme Court upheld it, concluding that it was not inconsistent with the separation of powers for Congress to create such a check on the President.

But conservatives like Kavanaugh have long celebrated the solo dissent of the late Justice Antonin Scalia from that ruling -- and the "unitary executive" theory it embraces, under which it is argued that it is unconstitutional for any executive branch officer to be insulated from presidential control.

If Kavanaugh provided a fifth vote for overturning the Morrison case, it could have implications for the Mueller probe, according to legal experts. While the independent counsel law expired in 1999, the regulations governing Mueller's appointment as a special counsel, like the independent counsel law itself, prohibit Mueller from being fired without good cause.

It's uncertain whether Kavanaugh's hostility to the Morrison case means that he would view Mueller's appointment itself as unconstitutional -- or if he simply believes that Mueller could be fired for any or no reason.