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Witness In Kavanaugh Hearings Wants To See Documents That Expanded Executive Power

Democrats have called for more documents from Supreme Court nominee Brett Kavanaugh’s time in the George W. Bush White House to be released, following a late-night dump of more than 40,000 pages.

Peter Shane, a law professor at Ohio State University who’s been called by Democrats as a witness in this week’s confirmation hearings, says he wants to see documents relating to Kavanaugh’s work on a number of signing statements from Bush that expanded executive power.

“There is reason to be concerned about Judge Kavanaugh’s kind of reflex to be extremely protective of executive power,” Shane (@petermshane) tells Here & Now‘s Robin Young. “I think that would be worrisome maybe at any stage in our history, but at this moment, perhaps especially dangerous.”

Interview Highlights

On Kavanaugh’s work in Ken Starr’s investigation of President Clinton in 1998, and concerns now of Kavanaugh’s expanded views of executive authorities

“My understanding is that the questions Judge Kavanaugh posed that could have been asked of President Clinton were quite sexually graphic. You know, there is irony here, but my greater concern is looking forward not just at the issue of indictability, but whether or not Judge Kavanaugh would think that the president has constitutionally vested authority to fire [Russia investigation special counsel] Robert Mueller or indeed to tell Robert Mueller who he may or may not indict.

“I worry whether or not Judge Kavanaugh would uphold congressional or even judicial subpoenas for evidence from the president, and these are issues on which he’s commented in ways that I find worrisome.

“There are also issues that President Trump is likely to raise that no court has yet addressed, but are very concerning. One is whether the president, if he corruptly engages in an official act, may be charged with obstruction of justice. In other words, if he fires somebody that he might otherwise have legally been entitled to fire, but does so for the express purpose of stopping an investigation of himself and his friends, might that be a criminal offense?”

On whether the president should have the power to pardon himself, and Kavanaugh’s views suggesting presidents shouldn’t be hindered by legal distractions while in office

“There’s also the question [of] whether presidents have the power of self-pardon. President Trump has said he absolutely has that power. I think there’s every reason to think he does not, but again, if you believe as Judge Kavanaugh wrote in a law review article that presidents should be able to do their jobs with as few distractions as possible, one way to remove distractions is to assure presidents that if need be, they can always pardon themselves.”

On the emoluments clause of the Constitution and whether he thinks Kavanaugh would hold Trump accountable for violating these laws

“One issue that is not related to the Russia investigation that’s already in the courts has to do with the so-called emoluments clauses of the Constitution. These issues have to do with whether the president is violating the Constitution by profiting in his private businesses from basically the patronage of both foreign governments and state governments at his properties, and the Constitution says with regard to foreign patronage, he’s supposed to account for this to Congress. He hasn’t done so.

“There’s a complete ban on receiving a emoluments from the states — Congress cannot consent to that. A district court has already determined that these clauses apply to the president and potentially apply to the Trump [International] Hotel in D.C., which the president denies.

“This is a very important issue of presidential accountability, and again I worry how Judge Kavanaugh would weigh in on them, and a campaigner for broad readings of executive power might not be what the court needs right now.”

On whether he thinks the 42,000 pages released on Kavanaugh’s time working for President Bush show a more detailed glimpse into his opinions on executive privileges

“They might. The Bush administration was well known for having issued an unprecedented volume of so-called signing statements. He would put his signature to a bill to make it law. He would often, over 100 times, sign a statement that indicated what parts of the law he thought might be unconstitutional, and a lot of these objections were often based on theories of executive power.

“Some of the claims are familiar claims about the president’s responsibility for foreign policy, but many of them were entirely unprecedented and, I have to say, a little bizarre in how extreme they were.

“So, it would be as staff secretary, it could be that Mr. Kavanaugh, as he would then be, might have contributed to the analysis behind these theories, he may have advocated them, or he may just have gone along with them. We don’t know. But they are of a piece with the positions he has taken on the president’s authority over the executive branch and judicial opinions.

“What bothers me about this … is that the key opinions that he’s written on executive power in the domestic sphere were written in cases that actually didn’t call for constitutional analysis at all. It was as if he were kind of champing at the bit to take these cases as occasions to lay out in great detail his theories of executive power.

“I’m concerned that he’s not just a believer in ideas about executive power that I think are incorrect, but he’s a campaigner for them.”

On the argument that former President Obama didn’t renounce Bush’s broad vision of executive authority

“There are two things to be said: Thing No. 1 is, every president is going to have political and institutional incentives to push the boundaries of their authority, particularly in foreign and military affairs, because Congress, to be blunt, has not pushed back at all on that.

“In domestic affairs, though, President Obama was quite careful to avoid the claims of inherent constitutional authority to basically ignore the commands of Congress in domestic affairs that President Bush was advancing.

“Now, the fact that President Bush made all of these objections doesn’t necessarily mean that he then proceeded to defy all of these laws, but President Obama’s signing statements — and by the way, they were usually fewer, just a mere fraction of what President Bush issued — they completely steered away from the kinds of complaints that President Bush was making about the so-called unitary executive and the president’s power, kind of comprehensive power to supervise everyone in the executive branch. That was not the Obama theory.”

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Supreme Court nominee Judge Brett Kavanaugh walks to meet with Sen. Amy Klobuchar, D-Minn., for a meeting on Capitol Hill in Washington, Tuesday, Aug. 21, 2018. (Jose Luis Magana/AP)
Supreme Court nominee Judge Brett Kavanaugh walks to meet with Sen. Amy Klobuchar, D-Minn., for a meeting on Capitol Hill in Washington, Tuesday, Aug. 21, 2018. (Jose Luis Magana/AP)

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