The White House slammed Senate Democrats on Wednesday for launching “laughable” attacks against Judge Brett Kavanaugh over a comment he once made about wanting to “put the final nail” in a 1988 Supreme Court ruling that upheld the constitutionality of a law creating an independent counsel.
President Trump’s Supreme Court nominee delivered the remark in question at an American Enterprise Institute conference in 2016, during which he was asked if there was any high court decision that deserved to be overturned.
“I’m going to say one. Morrison v. Olson. It’s been effectively overruled, but I would put the final nail in,” he told the crowd, according to footage of the event that resurfaced Wednesday.
The original ruling, which arose from a House Judiciary Committee investigation into then-Assistant Attorney General for the Office of Legal Counsel Ted Olson, dealt with the question of whether Congress can establish an independent investigative counsel inside the executive branch that cannot be fired by the president. The decision later served as a trigger for Ken Starr’s investigation of President Bill Clinton.
However, an independent counsel differs from a special counsel investigation, like the one currently being led by Robert Mueller, in that it has greater independence and does not report to the Justice Department.
Conservatives like Kavanaugh and the late Justice Antonin Scalia, who dissented in Morrison v. Olson, have long argued that it is unconstitutional for any officer of the executive branch, including an independent counsel, to enjoy complete protection from presidential control. Kavanaugh is expected to face tough questions about the Mueller probe during his Senate confirmation hearing later this summer.
Senate Minority Leader Chuck Schumer, D-N.Y., said Wednesday that the Kavanaugh must recuse himself from any case involving Mueller if appointed to the high court. His Democratic colleague, Sen. Richard Blumenthal, told CNN the comment by Trump’s Supreme Court nominee was “dangerous.”
“In many instances now, he has come down on the side of a strong executive who would somehow be protected from the ordinary investigation and prosecution that other Americans are subjected to,” Sen. Dick Durbin, D-Ill., told reporters on Wednesday.
But White House spokesman Raj Shah pointed to Durbin’s own words from a Senate hearing in 1999 in which he said, “Our form of government is grounded on the premise that unchecked power is tyranny. The independent counsel is unchecked, unbridled, unrestrained, and unaccountable.”
“The Dem attacks on Kavanaugh’s 2016 speech today are laughable,” Shah tweeted, “There is a clear legal difference between the Independent counsel statute and the Special Counsel regulation. Let’s not play fast and loose.”
Shah, who is handling communications related to Kavanaugh’s nomination, also pointed to Justice Elena Kagan’s praise of the Scalia’s dissent in Morrison v. Olson as “one of the greatest dissents ever written and every year it gets better.” Kagan was appointed by President Barack Obama and is widely considered to be a liberal-leaning member of the high court.
The controversy over Kavanaugh’s views toward the special counsel come as he continues to hold meetings on Capitol Hill and prepares for what is likely to be a contentious confirmation hearing.
