Brett Kavanaugh Once Said the Watergate Tapes Decision Was “Wrongly Decided”

Trump’s Supreme Court pick made the statement in 1999.

Supreme Court nominee Brett KavanaughJ. Scott Applewhite/AP

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Supreme Court nominee Brett Kavanaugh once suggested that the Supreme Court decision that forced President Nixon to turn over the Watergate tapes may have been “wrongly decided.” 

Kavanaugh was taking part in a 1999 roundtable with other lawyers, according to The Associated Press. The conversation was documented in a decades-old Washington Lawyer magazine article—one of thousands of documents Kavanaugh handed over to the Senate Judiciary Committee on Saturday as part of the confirmation process. 

Kavanaugh is known for his support of strong executive authority—a belief that could take center stage if special counsel Robert Mueller tries to force President Donald Trump to testify in the ongoing investigation of Russia’s interference in the 2016 election. 

U.S. v. Nixon restricted the president’s ability to claim executive privilege in order to avoid handing over information as part of a criminal investigation. “But maybe Nixon was wrongly decided—heresy though it is to say so,” Kavanaugh reportedly said at the roundtable, which took place in the wake of Kenneth Starr’s investigation into President Bill Clinton.

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…Maybe the tension of the time led to an erroneous decision.”

Later on in the discussion, he suggested that the court should have stayed out of the decision altogether: “Should U.S. v. Nixon be overruled on the ground that the case was a nonjusticiable intrabranch dispute? Maybe so.”

Over the years, Kavanaugh has made a number of statements that point to the judge’s support of executive power. In 2016, the nominee said he wants to “put the final nail” in the coffin of Morrison v. Olson, the 1988 high court decision that upheld the power of independent counsels to investigate government officials. And according to a 1998 video released by CNN on Friday, Kavanaugh said that Congress needs to be in charge of investigating the president. As he said, “It makes no sense at all to have an independent counsel looking at the conduct of the President.”

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SIX TRUTHS

Reclaiming power from those who abuse it often starts with telling the truth. And in "This Is How Authoritarians Get Defeated," MoJo's Monika Bauerlein unpacks six truths to remember during the homestretch of an election where democracy, truth, and decency are on the line.

Truth #1: The chaos is the point.

Truth #2: Team Reality is bigger than it seems.

Truth #3: Facebook owns this.

Truth #4: When we go to work, we're in the fight.

Truth #5: It's about minority rule.

Truth #6: The only thing that can save us is…us.

Please take a moment to see how all these truths add up, because what happens in the weeks and months ahead will reverberate for at least a generation and we better be prepared.

And if you think journalism like Mother Jones'—that calls it like it is, that will never acquiesce to power, that looks where others don't—can help guide us through this historic, high-stakes moment, and you're able to right now, please help us reach our $350,000 goal by October 31 with a donation today. It's all hands on deck for democracy.

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