DESPITE LEGAL EXPERTS SAYING KAVANAUGH'S VIEW ON INDEPENDENT COUNSELS "HAS NOTHING TO DO WITH SPECIAL COUNSELS," DEMS CONTINUE TO PUSH THE FALSE NARRATIVE
Democrats Are Conflating Judge Kavanaugh's Views On The Now-Defunct Independent Counsel With Today's Very Different Special Counsel Investigation
Democrats Have Voiced Opposition To Judge Brett Kavanaugh For Expressing Disapproval Of A Supreme Court Precedent "Upholding An Independent Counsel Law As Constitutional." "Democrats opposing Supreme Court nominee Brett Kavanaugh's nomination are seizing on remarks he made in 2016 saying he would like to put the 'final nail' in a Supreme Court precedent upholding an independent counsel law as constitutional. Republicans are pushing back, saying Kavanaugh's comment is being distorted." (Dustin Weaver and Mark Sherman, "Democrats Fault Kavanaugh Comment On Independent Counsel Law," The Associated Press , 7/18/18)
- The Law Expired In 1999 And "Does Not Apply To Special Counsel Robert Mueller's Russia Investigation." "The independent counsel law, which took the hiring and firing of prosecutors away from the executive branch, expired in 1999 and does not apply to special counsel Robert Mueller's Russia investigation. The ongoing probe falls under the Justice Department." (Dustin Weaver and Mark Sherman, "Democrats Fault Kavanaugh Comment On Independent Counsel Law," The Associated Press , 7/18/18)
Sen. Chuck Schumer (D-NY) Said That Judge Kavanaugh "Must Recuse Himself From Any Case Involving Mueller If Appointed To The High Court." "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." (Gabby Morrongiello, "White House Dismisses 'Laughable' Attacks On Kavanaugh's Views Toward Independent Counsel," Washington Examiner , 7/18/19)
Sen. Dick Durbin (D-IL) Said Judge Kavanaugh 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." "'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." (Gabby Morrongiello, "White House Dismisses 'Laughable' Attacks On Kavanaugh's Views Toward Independent Counsel," Washington Examiner , 7/18/19)
Sen. Cory Booker (D-NJ) Tweeted That There Were "Grave Questions About Whether Kavanaugh Would Rule The Current Special Counsel Investigation Unconstitutional." "In 2016, Judge Kavanaugh Said He Would 'Put The Final Nail' In SCOTUS Case Upholding The Independent Counsel Statute, Raising More Grave Questions About Whether Kavanaugh Would Rule The Current Special Counsel Investigation Unconstitutional." (Sen. Cory Booker, Twitter Feed , 7/18/18)
- Booker: "Judge Kavanaugh's Views On This Issue Could Affect The Outcome Of Any Potential Supreme Court Cases That May Arise From The Ongoing Special Counsel Investigation." "Kavanaugh's 'statements here are yet another indication that he views this matter in constitutional terms, and not just as a policy preference,' Booker said in a statement. 'This raises the troubling question of whether President Trump chose him exactly because he holds these beliefs. If he's confirmed, Judge Kavanaugh's views on this issue could affect the outcome of any potential Supreme Court cases that may arise from the ongoing special counsel investigation.'" (Elana Schor, "Kavanaugh in 2000: Congress Had 'Constitutional Duty' To Investigate President," Politico , 8/1/18)
Sen. Richard Blumenthal (D-CT) Said It Is Clear That Judge Kavanaugh Believes "The President Is Above The Law." "Sen. Richard Blumenthal, D-Conn., said it is clear that Kavanaugh believes 'the president is above the law.'" (Dan Mangan, "Trump's Supreme Court Pick Kavanaugh Would 'Put The Final Nail In' Case That Upheld Independent Counsel Law," CNBC , 7/18/18)
However, Legal Experts Have Said Judge Kavanaugh's View On Independent Counsels "Has Nothing To Do With Special Counsels"
Legal Experts Have Said Judge Kavanaugh's View On Independent Counsels "Has Nothing To Do With Special Counsels Or Mueller's Probe And, In Fact, The Two Types Of Federal Investigations Are Completely Different." "But law experts told Newsweek that Kavanaugh's view on independent counsels has nothing to do with special counsels or Mueller's probe and, in fact, the two types of federal investigations are completely different." (Alexandra Hutzler, "Democrats Cry Foul, But Brett Kavanaugh's View Of Independent Counsels Is Unrelated To Mueller Probe, Experts Say," Newsweek , 7/18/18)
- George Washington University Law Professor Jonathan Turley Stated That "Special Counsels Are An Entirely Different Creature." "'Special counsels are an entirely different creature,' Jonathan Turley, a law professor at George Washington University, told Newsweek. 'They are special but they are not independent.'" (Alexandra Hutzler, "Democrats Cry Foul, But Brett Kavanaugh's View Of Independent Counsels Is Unrelated To Mueller Probe, Experts Say," Newsweek , 7/18/18)
- David Fontana, A Law Professor At George Washington University, Agreed By Stating That "There Is No Way To Possibly Say That Kavanaugh Would Automatically View The Mueller Probe As Unconstitutional ." "David Fontana, a law professor at George Washington University, agreed with Turley and said that there is no way to possibly say that Kavanaugh would automatically view the Mueller probe as unconstitutional. Even if a five-justice majority featuring Kavanaugh were to overrule the Morrison v. Olson decision it is still likely that Mueller's investigation will be found constitutional, Fontana told Newsweek." (Alexandra Hutzler, "Democrats Cry Foul, But Brett Kavanaugh's View Of Independent Counsels Is Unrelated To Mueller Probe, Experts Say," Newsweek , 7/18/18)
- Harvard Law Professor Noah Feldman Said Judge Kavanaugh "Wasn't Saying That The Courts Should Find That The President Shouldn't Be Investigated." "But from a legal and constitutional perspective, Kavanaugh wasn't saying that the courts should find that the president shouldn't be investigated or indicted." (Noah Feldman, Op-Ed, "Kavanaugh Papers Don't Help Trump Avoid Indictment," Bloomberg , 7/10/18)
Justice Kagan Has Agreed With Judge Kavanaugh's Support For Justice Scalia's Dissent, Which Questioned The Constitutionality Of Independent Counsels
Morrison v. Olson Was A Case About The Constitutionality Of An Act That Provided For The Appointment Of An Independent Counsel To Investigate Wrongdoing By Government Officials. "Morrison v. Olson was a case about the constitutionality of the 1978 Ethics in Government Act, which provided for the appointment of an independent counsel to investigate wrongdoing by government officials. (Congress let the statute expire in 1999.) The central question was whether the statute violated the Constitution's provisions for the appointments clause and separation of powers." (Jen Kirby, "The Supreme Court May Decide On Mueller-Related Matters. Should Kavanaugh Have To Recuse Himself?" Vox , 7/25/18)
Scalia Wrote A Dissenting Opinion Stating That The Independent Counsel Was Performing An Executive Function Outside The Scope Of The Executive Branch, And Was Therefore, Unconstitutional. "The Court ruled 7-1 that it did not, with Chief Justice William Rehnquist writing the majority opinion. But Justice Antonin Scalia wrote a famous lone dissent that has a bit of a cult following among (mostly, but not exclusively) conservatives. Scalia objected to what he saw as a violation of separation of powers; the independent counsel, in his interpretation, was performing an executive function outside the scope of the executive branch." (Jen Kirby, "The Supreme Court May Decide On Mueller-Related Matters. Should Kavanaugh Have To Recuse Himself?" Vox , 7/25/18)
Justice Kagan Praised The Dissenting Opinion, Calling It "One Of The Greatest Dissents Ever Written And Every Year It Gets Better." More recently Justice Kagan, while sitting on the Supreme Court, weighed in on the same independent counsel case that Democrats cite against Judge Kavanaugh. Justice Kagan, like Judge Kavanaugh, criticized the court majority's ruling, and she praised the late Justice Antonin Scalia's dissent, calling it 'one of the greatest dissents ever written and every year it gets better.'" (Alex Swoyer, "Democrats Demand Kavanaugh Reveal How He'd Vote On Abortion, Health Care," The Washington Times , 7/23/18)
Sens. Durbin And Schumer Have Criticized Independent Counsels For Being "Unchecked, Unbridled, Unrestrained, And Unaccountable" And Called For Ending The Law
In 1999, Sen. Durbin Insisted That "Unchecked Power Is Tyranny" And That "The Independent Counsel Is Unchecked, Unbridled, Unrestrained, And Unaccountable." SEN. DICK DURBIN (D-IL): "Our form of government is grounded on the premise that unchecked power is tyranny. The independent counsel is unchecked, unbridled, unrestrained, and unaccountable." (Senator Dick Durbin, Remarks At A Committee On Governmental Affairs Hearing , 2/24/99)
- Durbin Added That "Congress Should Do What Many People Are Asking, Simply Let The Law Expire." DURBIN: "Following the role played by the independent counsel in the impeachment trial of President Clinton, I think Congress should do what many people are asking, simply let the law expire." (Senator Dick Durbin, Remarks At A Committee On Governmental Affairs Hearing , 2/24/99)
A 2003 Associated Press Report Noted Schumer Supported Congress Ending The Independent Counsel Law. (David Espo, "Will Bush Take Hit Over Leak Probe?" The Associated Press , 10/1/03)
(David Espo, "Will Bush Take Hit Over Leak Probe?" The Associated Press , 10/1/03)
In 1999, The Clinton Administration Said "After Much Reflection," They Also Agreed With Justice Scalia's Dissent Regarding Independent Counsels
When The Statute Came Up For Renewal In 1999, The Clinton Administration, Through The Justice Department, Changed Its Position To Agree With Justice Scalia's Dissent In Morrison. "When the statute came up for renewal in 1999, the Clinton administration, through the Justice Department, changed its position. 'Having worked with the act,' attorney general Janet Reno told the Senate Committee on Governmental Affairs, 'I have come to believe-after much reflection and with great reluctance-that [it] is structurally flawed and that those flaws cannot be corrected within our constitutional framework.' Reno went on to discuss the separation of powers and the lack of accountability on the part of independent counsels for exercises of power that are plainly executive. 'Here,' she said, 'I am paraphrasing Justice Scalia's dissent in Morrison.'" (Terry Eastland, Op-Ed, "Scalia's Finest Opinion," The Weekly Standard , 3/11/16)
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